Law Commons^™

Making The Modern American Legislative State, William J. Novak

Book Chapters

The essays in this volume are dedicated to two propositions. First, most generally, they aim to reinvigorate scholarly interest in the subject of legislation and bring a new level of analytical sophistication to the study of the legislature. Second, they are committed to looking at legislation developmentally, that is, legislation not as the simple static textual output of a law-drafting body, but as a dynamic social and political process-a living and breathing human activity with a distinct time dimension involving a complex pattern of beginnings, evolutions, maturations, mutations, emendations, and, of course, endings. These propositions nicely intersect with recent themes …

Constitutional Fidelity, The Rule Of Recognition, And The Communitarian Turn In Contemporary Positivism, Matthew D. Adler

Faculty Scholarship

No abstract provided.

A Cultural Tour Of The Legal Landscape: Reflections On Cardinal George's Law And Culture, Charles E. Rice

Journal Articles

When a ruling of the supreme court meets with Congressional disfavor there are several remedies available to Congress. If the decision is not on a constitutional level, a later statutory enactment will suffice to reverse or modify the ruling. If, however, the Court's decision is an interpretation of a constitutional mandate, such as the requirement of the fourteenth amendment that legislative districts be apportioned according to population, then a statute could not reverse the decision because the statute itself would be subject to that constitutional mandate as defined by the Court.

The obvious method of reversing a Supreme Court interpretation …

On The Incoherence Of Legal Positivism, John M. Finnis

Journal Articles

Legal positivism is an incoherent intellectual enterprise. It sets itself an explanatory task which it makes itself incapable of carrying through. In the result it offers its students purported and invalid derivations of ought from is.

In this brief Essay I note various features of legal positivism and its history, before trying to identify this incoherence at its heart. I do not mean to renege on my belief that reflections on law and legal theory are best carried forward without reference to unstable and parasitic academic categories, or labels, such as "positivism" (or "liberalism" or "conservatism," etc.). I use the …

Law In Flux: Philosophical Hermeneutics, Legal Argumentation And The Natural Law Tradition, Francis J. Mootz Iii

Scholarly Works

Peter Goodrich describes the plight of contemporary legal theory with concise accuracy: We have abandoned natural law foundations originally constructed in ecclesiastical venues only to find that the project of developing a secular legal language capable of transforming the management of social conflict into questions of technical rationality is doomed to failure. The ascendancy of analytic legal positivism has purchased conceptual rigor at the cost of separating the analysis of legal validity from moral acceptability, but retreat from this stale conceptualism and a return to traditional natural law precepts appears wildly implausible. The irrelevance of the natural law tradition in …

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 …

Limited-Domain Positivism As An Empirical Proposition, Stewart J. Schwab

Cornell Law Faculty Publications

In his typically clear statement of a provocative thesis, Fred Schauer, along with his co-author, Virginia Wise, ask us to think about positivism in a new way. Their claim has two parts. First, Schauer and Wise redefine legal positivism as an empirical claim about the limited domain of information that legal decisionmakers use to make decisions. Second, they begin testing the extent to which our legal system in fact reflects this limited domain. Ironically, Schauer and Wise believe that positivism, so conceived, is "increasingly false." Thus, their two-part approach is, first, to declare that legal positivism should be conceived of …

Positivism In The Historiography Of The Common Law, David K. Millon

Scholarly Articles

A great deal of important legal historical scholarship is doctrinal in focus, its objective being to chart the history of substantive common law rules. In this Article, Professor Millon suggests that doctrinal legal history is based implicitly on the modern positivist theory of law as a system of state-endorsed rules designed to resolve disputes in a consistent, predictable manner. He questions the validity of efforts to write the history of the premodern common law from this theoretical point of view.

Focusing on pre-seventeenth century civil cases, he finds that trial procedure seems to have allowed or even encouraged juries to …

Some Reasons For A Restoration Of Natural Law Jurisprudence, Charles E. Rice

Journal Articles

The growing influence of utilitarianism and legal positivism in American jurisprudence today and the decline of natural law have produced an ominous shift in the foundation of our legal system. This shift is illustrated by various courts' approaches to momentous legal issues of the Twentieth Century such as abortion and euthanasia. Ultimately, legal positivism is unacceptable as a jurisprudential framework because it provides no inherent limits on the power of the state and no basis for determining what is just. In contrast, the natural law provides a jurisprudential framework that both guides and limits the civil law. It therefore is …

Framers Intent: The Illegitimate Uses Of History, Pierre Schlag

Publications

No abstract provided.

The Straw Man Of Legal Positivism, Thomas F. Broden

Journal Articles

The typical view of many lawyers, philosophers, theologians and other thoughtful persons toward a so-called school of jurisprudence generally known as legal positivism is one of condemnation. According to this typical view legal positivism is a well developed philosophy of law the main tenets of which are that might makes right and that law and state sovereignty are absolute and not subject to independent moral evaluation. Needless to say this assumed jurisprudential view is roundly indicted, deplored and declaimed against with vigor and venom. We are warned that legal positivists are insidious termites threatening the very foundation of our law, …