Legal Theory 4 (4):533-547 (1998)

Brian Leiter
University of Chicago
The American Legal Realists, as I read them, are tacit legal positivists: they presuppose views about the criteria of legality that have affinities with positivist accounts of law in the sense that they employ primarily pedigree tests of legal validity. Ever since Ronald Dworkin's well-known critique of H.L.A. Hart's positivism a generation ago, however, it has been hotly contested whether there is anything about positivism as a legal theory that requires that tests of legal validity be pedigree tests. So-called Soft or Inclusive versions of positivism are willing to relax the restrictions on the content of a Rule of Recognition to admit non-pedigree criteria of legal validity; Hard or Exclusive versons of positivism deny that such a move is compatible with the central commitments of positivism. Hard Positivism, of which Joseph Raz has been the leading proponent, thus competes with various Soft Positivisms, defended by, among others, Coleman, Lyons, Soper, Waluchow, and now, explicitly, Hart himself in the “Postscript.” If the Realists are positivists, as I claim, then it cannot be the case that Soft Positivism is a genuinely positivistic doctrine. But there is more at stake here than just labels. Realist arguments for the indeterminacy of law—arguments central to the whole Realist enterprise—depend crucially on their tacit Hard Positivism. If, in fact, positivism has a more relaxed view of the criteria of legality than Hard Positivism supposes, then Realist arguments depend on unsound tacit premises about legal validity. What is at stake, then, is not whether Realists should be called “Positivists” or merely “Hard Positivists,” but whether their underlying view of the criteria of legality is sound. It can only be so if the best arguments favor Hard Positivism
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DOI 10.1017/s1352325200001130
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References found in this work BETA

Authority, Law and Morality.Joseph Raz - 1985 - The Monist 68 (3):295-324.
Nietzsche and the Morality Critics.Brian Leiter - 1997 - Ethics 107 (2):250-285.
Judicial Obligation, Precedent and the Common Law.Stephen R. Perry - 1987 - Oxford Journal of Legal Studies 7 (2):215-257.
Legal Indeterminacy.Brian Leiter - 1995 - Legal Theory 1 (4):481-492.
Conceptual Questions and Jurisprudence.Brian Bix - 1995 - Legal Theory 1 (4):465-479.

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Citations of this work BETA

Raz on Necessity.Brian H. Bix - 2003 - Law and Philosophy 22 (6):537 - 559.
Three Separation Theses.James Morauta - 2004 - Law and Philosophy 23 (2):111-135.
Why General Jurisprudence is Interesting.Julie Dickson - 2018 - Crítica. Revista Hispanoamericana de Filosofía 49 (147):11-39.

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