REINSTATING LEGAL POSITIVISM: FOUNDATION, PHILOSOPHY AND CRITERIA

Abstract

This article argues 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 neoBenthamite renaissance in legal theory, which reproduces the moral-legal 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. The fascinating problems with legal theory endure, and if these articles contain any important insights, it's that studying legal organizations throughout history may be able to resolve these problems more effectively than is currently acknowledged.