Were the Legal Realists Legal Positivists?
51 Pages Posted: 18 Apr 2007
In a series of articles Brian Leiter has advanced the thesis that legal positivists were hard legal positivists. He argues that they argued, along the lines W.V. Quine would argue some years later, for reorienting jurisprudence towards non-normative inquiry, and that the only legal theory consistent with this approach is legal positivism. In this essay I challenge Leiter's arguments. I first argue that nothing in the legal realists' work could be seen as taking a stand in the debate between soft and hard positivism. I then argue that Leiter's arguments could be interpreted in several ways, and that none easily fits existing versions of legal positivism.
Keywords: legal positivism, legal realism, leiter, hard positivism, jurisprudence, adjudication
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