Legal Realism and Legal Positivism Reconsidered *
This chapter challenges two widespread views about the relationship between the jurisprudential theories known as ‘Legal Realism’ and ‘Legal Positivism’. The first is that the two doctrines are essentially incompatible or opposed at the philosophical or conceptual level. The second is that Legal Realism is a jurisprudential joke, a tissue of philosophical confusions — confusions that the 20th century's leading Positivist, H. L. A. Hart, exposed more than thirty years ago in the famous Chapter VII (‘Formalism and Rule-Skepticism’) of The Concept of Law. The two views are connected in the following way: Hart, on this picture, sealed the tomb of Realism as a serious legal theory, and in so doing gave credence to the idea that Realism and Positivism were opposed doctrines. The chapter contests both these views through a careful re-examination of Hart's influential critique.
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