REINSTATING LEGAL POSITIVISM:FOUNDATION, PHILOSOPHY AND CRITERIA

Abstract

This article argued that seeing legal positivism as a political tradition that
supports the Separation thesis is the best way to comprehend it. For long,
that tradition was devoted to dismantling the conceptual framework that
the common law tradition and its line of reasoning operated under the
premise that morality and law are not intrinsically linked. A genealogical
reconstruction of the tradition shows that positive judges operate in that
area and must adapt their own ways of thinking to fit within certain
constraints. The bulk of contemporary positivists' attempts to refute these
conclusions reveal significant problems with the theory, problems that
result from the attempt to divorce positivism from its political past. The new
neo-Benthamite renaissance in legal theory, which reproduces the morallegal rift, is thus criticized for both restoring positivism to its political
heritage and for providing a platform for a fruitless debate between
positivism's critics and adherents. "As for the philosophical approach,
which was so dynamic and influential, it sometimes seems a little tired and
demonstrates its methods by trying to find revivification through absurdist
flirtations.