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Three Positivisms, Robin West
Three Positivisms, Robin West
Georgetown Law Faculty Publications and Other Works
In this article, I accept and hope to expand upon the conventional consensus view that The Path of the Law is a brief for an Americanized version of Austinian legal positivism and for the "separation" of law and morality that is at its core. I also want to show, however, that the distinctive accomplishment of this Essay is its literary ambiguity: Both its explicit arguments for the positivist separation of law and morality, and the three enduring metaphors Holmes uses to make the case -- (1) the "bad man" from whose perspective we can clearly view the law; (2) the …
Toward Humanistic Theories Of Legal Justice, Robin West
Toward Humanistic Theories Of Legal Justice, Robin West
Georgetown Law Faculty Publications and Other Works
In an oft-quoted aside, Justice Holmes once remarked that when lawyers in his courtroom make appeal to justice, he stops listening: such appeals do nothing but signal that the lawyer has neither the facts nor law on his side, or worse, that he is ignorant of whatever law might be relevant.' Holmes's remark has not gone unheeded. Holmes's legacy, in part, is precisely this lapse: we don't have, or teach, a guiding theory of legal justice, nor do we have, or teach, a family of competing theories of legal justice, that might inform our work in law, at least as …