Scott Shapiro did the most to popularize a misleading way of describing legal positivism. (The mistake derives from Greenberg and Gideon Rosen, but Shapiro’s 2011 book helped make it common among American legal philosophers, most of whom are not burdened by knowing anything about the history of the subject and, in many cases, have never read Kelsen.)

According to Shapiro, positivists believe ”all legal facts [i.e., facts about the existence and content of law] are ultimately determined by social facts alone.” This means Hans Kelsen is not–contrary to his own belief and to Hart’s and Raz’s and everyone else prior to the unfortunate metaphysical turn in recent Amerian jurisprudence–a legal positivist. For Kelsen, recall, law is a coercive normative order, in which delict and sanction are connected by imputation in norms (i.e., statements of the form, “Anyone who performs the forbidden conduct [the delict] ought to be [imprisoned, fined etc.]”), and in which lower-level norms are valid in virtue of higher-order norms, until we reach the presupposition of a Grundnorm.  A legal order exists insofar as this complex abstract object (a coercive normative order, with a hierarchical structure) exists:   social facts do not suffice to explain its existence, although they come in at the margins in two ways:  (i) law-creating acts are “acts of will,” but they only create law in virtue of a legal normative order existing; and (2) legal systems must be efficacious, which is a matter of social facts.

What do legal positivists like Kelsen and Hart really agree on? They agree that legal norms need not be morally justified; and the agree that jurisprudence is a purely descriptive account of law, and is silent on what the law ought to be. All this is lost in the current and misleading fad of describing positivism as a view about the determination of legal facts by only social facts.

I’m curious whether those who know their Kelsen disagree with this assessment?