Misunderstanding Positivism

Authors

Anthony J. Sebok, Brooklyn Law SchoolFollow

Abstract

It is important that I point out the limited purposes of this article. I cannot, in the context of the argument I make, prove that positivism will not inevitably collapse into a conservative theory of law. Nor can I prove that positivism is not vulnerable to jurisprudential arguments unrelated to the attempt to link positivism with formalism, legal process, and originalism. I recognize that strong arguments have been made that modem positivism's attempts to divorce itself from classical positivism's command theory of law has opened up more problems than it has solved. I have certain views on whether that divorce is possible and the form it should take, but this is not the place to raise them. My single goal in this article is to disprove a set of bad arguments against positivism, which, in my opinion, have given it a peculiarly conservative profile and have distracted us from investigating alternative versions.

Recommended Citation

Anthony J. Sebok, Misunderstanding Positivism, 93 Mich. L. Rev. 2054 (1995).
Available at: https://repository.law.umich.edu/mlr/vol93/iss7/2