analytical legal positivism
, has lost a sense of itself after Dworkin's challenge to Hartian jurisprudence and became absorbed by the family dispute between hard (or exclusive) and soft (or inclusive) conceptions of legal positivism
RICHARD, THE BATTLE FOR THE AMERICAN MIND: A BRIEF HISTORY OF A NATION'S THOUGHT 262-65 (2004) (describing Oliver Wendell Holmes, Jr., as a moral relativist who was chiefly responsible for the 20th-century replacement of natural law with legal positivism
While legal positivism
and natural law approaches might each be compatible with observations about social and historical context, (43) they do not direct our attention to them.
versions of legal positivism
are those espoused by Hart, Joseph Raz, and
of legal positivism
) associated with arbitrariness, legal nihilism was
This purely social practice foundation of legality is what fundamentally differentiates legal positivism
from the universal aspirations of natural law morality.
But he thought this constitutional order was being steadily undermined by legal positivism
and pragmatism in the law schools, the judiciary, and the post-Carter, increasingly secular Democratic Party.
with natural law and legal positivism
, in that order, followed by legal
Legal philosophy today is dominated by two schools of thought: legal positivism
and natural law thinking.
Three twentieth-century developments in American law and jurisprudence--the emergence of legal positivism
as the dominant legal theory, the ascendency of public law over private law, and the predominance of federal law over state law--have had a profound impact on state constitutional interpretation and have made the interpretation of this state constitutional provision a more challenging undertaking.
My hypothesis benefits from insights of both MacCormick and Gardner concerning the nature of the fable, as well as from the idea that protecting legal positivism
(put in Positivism and the Separation of Law and Morals) is the key to the reading of The Concept of Law in general, and of the fable in particular.
Unlike conventional international legal positivism
, inclusive positivism acknowledges that moral obligation plays a role in the validation of human rights law consistent with the practice of human rights actors.