Legal Positivism
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More on recent “grounding” formulations of legal positivism that exclude Hans Kelsen
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…
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Muhammad Ali Khalidi and Liam Murphy (hereafter K&M) on “Disagreement about the kind law”
This paper by K&M appeared in Jurisprudence 12 (2021): 1-16. The main contribution of the paper is in section 4, which argues, quite plausibly, for the view that law is dependent on (at least some) people having the concept of law. This is a significant improvement on a related point that Alex Langlinais and I…
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Kelsen and “grounding” versions of legal positivism
The current American fad (which I write about critically in Chapter 9 of my forthcoming book) of characterizing legal positivism as the view that “legal facts are grounded in social facts” has as one of its many ironies that the other major 20th-century legal positivist, Hans Kelsen, rejects it (Hart as I argue, does not…
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Richard Stillman on the problem of theoretical disagreements
This will only interest my legal philosophy readers, but I do want to commend to their attention this paper by Richard Stillman, who trained as a philosopher of language with Stephen Neale before coming to Chicago to study law (and jurisprudence). He has identified something important about at least one subset of theoretical disagreements in…
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Some questions and doubts about Greenberg’s “Moral Impact Theory of Law”
(The following grew out of a discussion with two Chicago students doing an "independent study" in advanced general jurisprudence: 3L Courtney Cox and 2L Phil Smoke. They are not responsible for what follows, but I was helped by discussing the paper with them.) Mark Greenberg (UCLA) has recently published a paper that synthesizes some of…
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Priel on “Towards Classical Legal Positivism”
Dan Priel (Osgoode) has posted a draft of this paper on SSRN. I assume it's an early draft, since there's lots of rhetorical excess and overreaching, and associated carelessness, but there is a core idea that is interesting and prima facie plausible and deserves attention and development. The idea is this: the "classical" positivists like Hobbes and…
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Simpson’s “The Common Law and Legal Theory”
A couple of years ago, Leslie Green and I had a spirited exchange in the pages of the Times Literary Supplement with A.W.B. Simpson about his hatchet job on H.L.A. Hart, delivered under the guise of a review of Nicola Lacey’s fine biography. Like some other reviews of Hart’s biography–I am thinking especially of Thomas…
Jacob Barrett, Ideal and Non- Ideal Theory (Cambridge University Press, 2026) Part of the Elements in Political Philosophy series. Permanently…