¹ See MacCormick, Neil, Institutions of Law: An Essay in Legal Theory (2007) [hereinafter MacCormick, Institutions]; Neil MacCormick, H.L.A. Hart (2007) [hereinafter MacCormick, Hart].Google Scholar

² See, e.g., Greenawalt, Kent, Too Thin and Too Rich: Distinguishing Features of Legal Positivism, in The Autonomy of Law: Essays on Legal Positivism 1, 8 (Robert P. George ed., 1996) (noting use of “positivism” label for “summary condemnation”); Frederick Schauer, Positivism as Pariah, in The Autonomy of Law, Essays on Legal Positivism 31, 35; Wilfrid J. Waluchow, The Many Faces of Legal Positivism, 48 U. Toronto L.J. 387, 390 (1998) (discussing “meaningless[ness]” of debates within legal positivism). Much of twentieth-century positivist legal theory has sought to redeem the term from its use as an epithet. See, e.g., H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 615–21 (1957) (discussing post-World War II critique of legal positivism by Radbruch, among others); Anthony Sebok, Legal Positivism in American Jurisprudence 2, 23 (1998) (discussing derogatory use of “positivist” label).Google Scholar

³ See MacCormick, Neil & Weinberger, Ota, An Institutional Theory of Law: New Approaches to Legal Positivism (1986) (identifying MacCormick's work, in contrast to Weinberger's, as in the British tradition of legal positivism).Google Scholar

⁴ These decades were marked, for example, by the publication of monographs on legal positivism and many symposia and anthologies on the topic. See, e.g., Tom Campbell, The Legal Theory of Ethical Positivism (1996); Hart's Postscript: Essays on the Postscript to The Concept of Law (Jules Coleman ed., 2001) [hereinafter Hart's Postscript]; Ruth Gavison, Issues in Jurisprudence: The Influence of H.L.A. Hart (1987) [hereinafter Issues in Jurisprudence]; The Autonomy of Law: Essays on Legal Positivism (Robert P. George ed., 1996) [hereinafter The Autonomy of Law]; Positivism Today (Stephen Guest ed., 1996); Kramer, Matthew, In Defense of Legal Positivism: Law Without Trimmings (1999); Postema, Gerald J., Bentham and the Common Law Tradition (1986); Sebok, , supra note 2; Wilfrid Waluchow, Inclusive Legal Positivism (1994); Symposium: The Hart-Fuller Debate At Fifty, 83 N.Y.U. L. Rev. 993 (2008). Many other instances of second-order accounts of legal positivism by these authors and others appeared as stand-alone articles and are cited in the footnotes to this Section.Google Scholar

⁵ See Lacey, Nicola, Analytical Jurisprudence Versus Descriptive Sociology Revisited, 84 Tex. L. Rev. 945, 947–50 (2006).Google Scholar

⁶ See Dworkin, Ronald M., The Model of Rules, 35 U. Chi. L. Rev. 14, 17–18 (1967) describing as the “skeleton” of legal positivism as three “central and organizing propositions.”Google Scholar

⁷ See infra notes 44–45 and accompanying text.Google Scholar

⁸ See, e.g., Coleman, Jules, Incorporationism, Conventionality, and the Practical Difference Thesis, in Hart's Postscript, supra note 4, at 99; David Dyzenhaus, Positivism's Stagnant Research Programme, 20 Oxford J. Legal Stud. 703 (2000); Finnis, John, On the Incoherence of Legal Positivism, 75 Notre Dame L. Rev. 1597 (2000); Klaus Fueßer, Farewell to ‘Legal Positivism': The Separation Thesis Unravelling, in The Autonomy of Law, supra note 4, at 119, 152; Gerald J. Postema, Coordination and Convention at the Foundations of Law, 11 J. Legal Stud. 165 (1982).Google Scholar

⁹ See, e.g., Brian, Bix, On the Dividing Line Between Natural Law and Legal Positivism, 75 Notre Dame L. Rev. 1613, 1624 (2000) (suggesting that positivists differ from one another as much as they differ from natural-law theorists); Timothy A.O. Endicott, Herbert Hart and the Semantic Sting, 4 Legal Theory 283 (1998) (describing overlap of assumptions between Hart and Dworkin); Philip Soper, Searching for Positivism, 94 Mich. L. Rev. 1739 (1996) (review of Waluchow, supra note 4); Jeremy Waldron, Normative (or Ethical) Positivism, in Hart's Postscript, supra note 4, 410.Google Scholar

¹⁰ See, e.g., Adler, Matthew D., Constitutional Fidelity, the Rule of Recognition, and the Communitarian Turn in Contemporary Positivism, 75 Fordham L. Rev. 1671 (2006) (exploring nature of the conventions regarding a rule of recognition that must exist in the U.S. constitutional order); Jules Coleman, Negative and Positive Positivism, 11 J. Legal Stud. 139 (1982); Kramer, , supra note 4; Andrei Marmor, The Separation Thesis and the Limits of Interpretation, 12 Can. J.L. & Juris. 135 (1999).Google Scholar

¹¹ See, e.g., Schauer, Frederick & Wise, Virginia J., Legal Positivism as Legal Information, 82 Cornell L. Rev. 1080, 1087–88, 1092 (1997); Schauer, Frederick, The Limited Domain of the Law, 90 Va. L. Rev. 1909, 1951–54 (2004).Google Scholar

¹² See, e.g., Dyzenhaus, David, The Demise of Legal Positivism?, 119 Harv. L. Rev. F. 112 (2006); George, Robert P., Natural Law and Positive Law, in The Autonomy of Law, supra note 4, at 321; Jeffrey D. Goldsworthy, The Self-Destruction of Legal Positivism, 10 Oxford J. Legal Stud. 449 (1990); Green, Leslie, Positivism and Conventionalism, 12 Can. J. L. & Jurisprudence 35 (1999); Postema, Gerald J., Jurisprudence as Practical Philosophy, 4 Legal Theory 329 (1998); Soper, Philip, Law's Normative Claims, in The Autonomy of Law, supra note 4, at 215.Google Scholar

¹³ See, e.g., Brian, Bix, Patrolling the Boundaries: Inclusive Legal Positivism and the Nature of Jurisprudential Debate, 12 Can. J.L. & Juris. 17 (1999) (tracing legal positivism to Hobbes); Owen M. Fiss, The Varieties of Positivism, 90 Yale L.J. 1007 (1981); Gardner, John, Legal Positivism: 5 1/2 Myths, 46 Am. J. Juris. 199 (2001); MacCormick, Neil, A Moralistic Case for A-Moralistic Law?, 20 Val. U. L. Rev. 1 (1985); Perry, Stephen, Hart's Methodological Positivism, in Hart's Postscript, supra note 4, at 311; Kevin Toh, Hart's Expressivism and His Benthamite Project, 11 Legal Theory 75 (2005); Twining, William, General and Particular Jurisprudence—Three Chapters in a Story, in Positivism Today, supra note 4, at 119; Jeremy Waldron, All We Like Sheep, 12 Can. J. L. & Juris. 169 (1999).Google Scholar

¹⁴ See, e.g., Beyleveld, Deryck & Brownsword, Roger, Normative Positivism: The Mirage of the Middle Way, 9 Oxford J. Legal Stud. 462, 462 (1989) (concluding that modern “normative” positivism is “incoherent”); David Dyzenhaus, The Genealogy of Legal Positivism, 24 Oxford J. Legal Stud. 39 (2004); Halpin, Andrew, The Methodology of Jurisprudence: Thirty Years off the Point, 19 Can. J. Law & Juris. 67 (2006).Google Scholar

¹⁵ See, e.g., Allan, James, A Modest Proposal, 23 Oxford J. Legal Stud. 197 (2003); Leiter, Brian, Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence, 48 Am. J. Juris. 17 (2003); Lyons, David, Review, Principles, Positivism, and Legal Theory, 87 Yale L.J. 415, 424–25 (1977); Moore, Michael S., Hart's Concluding Scientific Postscript, 4 Legal Theory 301 (1998); Schauer, , supra note 2, at 31; Brian Z. Tamanaha, The Contemporary Relevance of Legal Positivism, 32 Aust. J. Leg. Phil. 1 (2007).Google Scholar

¹⁶ See, e.g., Krygier, Martin, The Concept of Law and Social Theory, 2 Oxford J. Legal Stud. 155, 155–67 (1982); Lacey, , supra note 5, at 947–49; Andrew Lewis, Legal Positivism—Some Lessons from Legal History, in Positivism Today, supra note 4, at 65, 67–73; Philip Schofield, Jeremy Bentham and Nineteenth-Century English Jurisprudence, 12 J. Legal Hist. 58, 61–75 (1991); Twining, , supra note 13, at 119, 123–31.Google Scholar

¹⁷ See, e.g., Beyleveld, Deryck & Brownsword, Roger, The Practical Difference Between Natural-Law Theory and Legal Positivism, 5 Oxford J. Legal Stud. 1, 31 (1985) (arguing that “the ultimate reason for choosing between natural-law theory and positivism is not the moral reason but the reason of theoretical superiority”).Google Scholar

¹⁸ Dworkin characterized his theory as a “general attack on positivism.” Dworkin, supra note 6, at 20; see also Dyzenhaus, supra note 8, at 712, 716 (noting that a “Dworkinian” judge would not be a legal positivist). But others have argued that Dworkin is nevertheless a legal positivist in some sense. See, e.g., Leiter, supra note 15, at 27; Perry, supra note 13, at 317; Stephen Perry, The Varieties of Legal Positivism, 9 Can. J.L. & Juris. 361, 361 (1996).Google Scholar

¹⁹ See, e.g., Green, Leslie, Positivism and the Inseparability of Law and Morals, 83 N.Y.U. L. Rev. 1035, 1035–36 (2008); Postema, Gerald, Law's Autonomy and Public Practical Reason, in The Autonomy of Law, supra note 4, at 79, 80.Google Scholar

²⁰ See, e.g., Coleman, , supra note 10, at 140; Gardner, supra note 13, at 199.Google Scholar

²¹ This point is related to but distinct from the so-called separability thesis. Voluminous citations would be required to support this assertion fully and specifically; in identifying these points of agreement, I have drawn on the sources in surrounding footnotes.Google Scholar

²² See Finnis, John, Natural Law and Natural Rights 14 (1980) (describing law as “a significantly differentiated type of social order”).Google Scholar

²³ Commitment to this position does not imply a normative or descriptive aim, a particular mode of argument or description, or any particular characterization of the acts in question. Since Hart, this aspect of the positivist position has probably most often been discussed in terms of the following of rules, but work on rule following is best understood as a particular way of discussing the reason-seeking function of law.Google Scholar

²⁴ Hart, , supra note 2, at 599, 601 n.25.Google Scholar

²⁵ See, e.g., Joseph, Raz, Practical Reason and Norms 35–48 (1990).Google Scholar

²⁶ See Schauer, , supra note 11, at 1915–16.Google Scholar

²⁷ Hart, H.L.A., The Concept of Law 94 (1994).Google Scholar

²⁸ See infra notes 99–107 and accompanying text.Google Scholar

²⁹ See Hart, H.L.A., Comment, in Issues in Jurisprudence, supra note 4, at 35, 39; but see Stephen R. Perry, Interpretation and Methodology in Legal Theory, in Law and Interpretation: Essays in Legal Philosophy 97, 120 (Andrei Marmor ed., 1995) (arguing that Hart saw his theory of law as the only “possible conceptual analysis of law”). Joseph Raz makes this point often. See, e.g., The Problem About the Nature of Law, 21 U. W. Ontario L. Rev. 203, 218 (1982); On the Nature of Law [hereinafter Raz, On the Nature], in Between Authority and Interpretation: On the Theory of Law and Practical Reason [hereinafter Raz, Between] 91, 97–98 (2009) (“While the law has many essential features we are not aware of all of them… . The study of jurisprudence is never-ending, for the list of the essential properties of law is indefinite.”). See also Finnis, supra note 22, at 17; Kramer, supra note 4, at 216–27.Google Scholar

³⁰ See supra note 16.Google Scholar

³¹ Some second-order accounts of positivism have explored the relationship between “external” and “internal” legal theory, and the relationship between this distinction and the necessarily partial nature of legal theory. See, e.g., Perry, supra note 29. Others have explored the contexts in which legal theory is produced. See, e.g., Lacey, supra note 5, at 947–48; Schofield, supra note 16, at 69–70, 82, 85. But the link between these two topics has been much less scrutinized.Google Scholar

³² See Perry, , supra note 13; Perry, supra note 18; Perry, supra note 29.Google Scholar

³³ Perry, , supra note 13, at 311.Google Scholar

³⁴ Id. at 347, 354.Google Scholar

³⁵ See Perry, , supra note 29; Hart, supra note 27, at 91 (opining that “all our criticisms of the prediction theory of obligation may be best summarized as” the criticism that they “define … out of existence” “the internal aspect of obligatory rules”).Google Scholar

³⁶ See Perry, , supra note 29. See also Hart, supra note 27, at 91, 243–44.Google Scholar

³⁷ See Krygier, , supra note 16; Lacey, supra note 5; Frederick Schauer, (Re)Taking Hart, 119 Harv. L. Rev. 852 (2006) (reviewing Nicola Lacey, A Life of H.L.A. Hart: The Nightmare and the Noble Dream (2004)); Schofield, supra note 16.Google Scholar

³⁸ See, e.g., Berman, Harold J., The Origins of Western Legal Science, 90 Harv. L. Rev. 894 (1977); Lewis, , supra note 16; David Sugarman, Legal Theory, the Common Law Mind and the Making of the Textbook Tradition, in Legal Theory and Common Law 26 (William Twining ed., 1986).Google Scholar

³⁹ See, e.g., Abbott, Andrew, The System of Professions: An Essay on the Division of Expert Labor (1988) [hereinafter Abbott, System of Professions]; Andrew Abbott, Chaos of Disciplines (2001) [hereinafter Abbott, Chaos]; Tony Becher, Academic Tribes and Territories: Intellectual Enquiry and the Cultures of Disciplines (1989); Collins, Harry & Evans, Robert, Rethinking Expertise (2007); Collins, Randall, The Sociology of Philosophies: A Global Theory of Intellectual Change (1989).Google Scholar

⁴⁰ See Bradbury, Malcolm, What Was Post-Modernism? The Arts in and after the Cold War, 71 Int'l Affairs 763, 767–74 (1995) (discussing Irving Howe's initial use of the prefix in 1959 and its subsequent shifts in meaning in different contexts and periods).Google Scholar

⁴¹ See MacCormick, , Institutions, supra note 1, at v (explaining abandonment of “positivist” label as a result of debates over the issue).Google Scholar

⁴² See, e.g., Twining, , supra note 13, at 123–25 (suggesting that John Austin's work initiated this narrowing of the issues addressed by legal theory); R. George Wright, Does Positivism Matter?, in The Autonomy of Law, supra note 4, at 57, 57, 68 (arguing that legal positivist positions are trivial).Google Scholar

⁴³ Many legal theorists have taken this position, but prior to MacCormick they described themselves, and would most likely have been described as, anti-positivist rather than post-positivist. See, e.g., William E. Conklin, The Invisible Origins of Legal Positivism: A Re-Reading of a Tradition 3, 68, 304 (2002); Fueßer, supra note 8, at 119, 120; George, supra note 12, at 321, 330; Tamanaha, supra note 15, at 35–36.Google Scholar

⁴⁴ See, e.g., Greenawalt, , supra note 2, at 19 (noting that “the label ‘legal positivism’ may be mainly a matter of rhetorical force, now usually negative”); Sebok, supra note 2, at 2 (noting that the “positivist” term has “in recent years … become a pejorative in modern American legal circles”); Schauer, supra note 2, at 32–35 (discussing pejorative uses of “positivist” label).Google Scholar

⁴⁵ Cf. Becher, , supra note 39, at 70.Google Scholar

⁴⁶ MacCormick's use of the label may also be related to terminological bleeding from one specialty to another. The term “post-positivist” is not uncommon in work on international law and international relations, another field in which MacCormick wrote. See, e.g., International Theory: Positivism and Beyond (Steve Smith, Ken Booth & Marysia Zalewski eds., 1996); Biersteker, Thomas, Critical Reflections on Post-Positivism in International Relations, 33 Int'l Stud. Q. 263 (1989); Gontarek, Stan, International Legal Theory: Positivist, Naturalist, and Much More, 1 Int'l Legal Theory 5 (1995). In this subfield, the term is used not to refer to a position beyond or following legal positivism but in a manner borrowed from its meaning in the philosophy of science, where it refers to post-logical positivist theoretical positions. See, e.g., Ruth Groff, Critical Realism, Post-Positivism, and the Possibility of Knowledge (2004); Zammito, John H., A Nice Derangement of Epistemes: Post-positivism in the Study of Science from Quine to Latour (2004). Larry Laudan is known for having argued that these “post-positivist” positions share important assumptions with the positivism they claim to move beyond and are largely an extension of positivism rather than a true departure from it. See Larry Laudan, Beyond Positivism And Relativism: Theory, Method, And Evidence (1996).Google Scholar

⁴⁷ For example, he maintains that “law and morality are conceptually distinct.” MacCormick, Institutions, supra note 1, at 261, 264.Google Scholar

⁴⁸ MacCormick, , Institutions, supra note 1, at 278–79. See also MacCormick, Hart, supra note 1, at 16, 167; MacCormick & Weinberger, supra note 3, at 7.Google Scholar

⁴⁹ See, e.g., MacCormick, , Institutions, supra note 1, at 25–30 (discussing various aspects of theoretical debates over rules, norms, exclusionary reasons, discretion, and standards); id. at 56–57 (offering critique of received understanding of Hart's Rule of Recognition concept); id. at 62–73 (clarifying distinction between rules and habits); id. at 161–65 (discussing validity and defeasibility of legal norms).Google Scholar

⁵⁰ MacCormick, , Institutions, supra note 1, at 264. See also id. at 4 (writing that he believes that “some minimum of justice is essential” to legal validity). MacCormick also points to his incorporation of positions associated with legal theorists identified as natural law theorists as well as legal positivists. Id. at 279. But as has often been discussed, many legal positivists have moderated their position to accommodate criticisms offered by natural law theorists or non-positivists, without relinquishing their commitment to the positions described above in Section B.I.2. See, e.g., Robin Bradley Kar, Hart's Response to Exclusive Legal Positivism, 95 Geo. L.J. 393 (2007).Google Scholar

⁵¹ MacCormick, , Institutions, supra note 1, at 278.Google Scholar

⁵² See Huib M. De Jong & Werner, Wouter G., Continuity and Change in Legal Positivism, 17 L. & Phil. 233, 240, 249 (1998). To be sure, there are some ways in which MacCormick moves beyond the concerns of prior legal positivists, as outlined above. He suggests, for example, that law might not be reducible to discourse. See MacCormick, Institutions, supra note 1, at 62–73. He also suggests that judgments regarding the legal validity of norms occur on a continuum rather than being binary judgments. Id. at 161–65, 257–58. And as noted below, he draws on a wider range of theoretical material than the traditional legal positivist does. See infra note 56 and accompanying text.Google Scholar

⁵³ MacCormick, , Institutions, supra note 1, at 1, 60.Google Scholar

⁵⁴ Id. at 255. See also Neil MacCormick, The Concept of Law and The Concept of Law, in The Autonomy of Law, supra note 4, at 163, 164–71. MacCormick uses the term “discursive” in a narrower sense than I do, to refer to a disputational setting rather than to practices of verbal articulation.Google Scholar

⁵⁵ MacCormick, , Institutions, supra note 1, at 24, 177–78, 184, 289, 302–03. MacCormick claims that his theory is not “derived from” or “entailed by” Luhmann's systems theory, but that the two are “strikingly mutually compatible.” Id. at 302.Google Scholar

⁵⁶ MacCormick, , Institutions, supra note 1, at 65, 154, 292–93.Google Scholar

⁵⁷ MacCormick comes close to acknowledging this when he acknowledges that scholarship can only ever hope to provide a partial account of its subject matter. MacCormick, Institutions, supra note 1, at 301–02 (asserting that scholarship cannot claim “to have found some ‘Archimedean’ point outside, perhaps ‘above,’ the practical activity from which it looks down on the activity and sees that it represents nothing real. Rather, as Luhmann points out, it involves a kind of self-observation of the legal system from within it, but an observation that is not aimed directly at the solution of particular current practical problems arising within it”).Google Scholar

⁵⁸ See, e.g., Lacey, , supra note 5, at 950–57; Perry, supra note 29, at 97 (“As a discipline jurisprudence claims … to be both a branch of practical philosophy … and a social science of a certain kind.”). But see Roger Cotterrell, Why Must Legal Ideas Be Interpreted Sociologically?, 25 J.L. & Soc'y 171 (1998). MacCormick's incorporation of Luhmannian systems theory into his account of law can be viewed as a logical extension of this tradition. See MacCormick, Institutions, supra note 55 and accompanying text.Google Scholar

⁵⁹ See, e.g., Krygier, , supra note 16, at 164, 167 (noting how different disciplinary commitments of analytical theorists and social scientists studying law lead them to identify different characteristics of legal systems); Lacey, supra note 5, at 950–57 (providing critique of H.L.A. Hart's respect for and disciplinary allegiance to analytic philosophy); Lewis, supra note 16, at 65, 70–71 (presenting descriptive account of parallel histories of valorization of autonomy in legal practice and legal theory); Schauer, supra note 37, at 858–69 (discussing disciplinary commitments and dimensions of twentieth-century positivism in the wake of Hart); Twining, supra note 13, at 129–30 (describing history of particularizing conclusions of post-Bentham legal theorists, and parallels between particularization in legal practice and in jurisprudence). Some work, to be sure, has rejected the thesis that the legal domain involves the kind of partiality or suspension identified by legal positivism, while acknowledging that legal theory is necessarily partial, and draws from these premises the conclusion that legal positivism in one or more of its varieties is intellectually incoherent. But this work argues that the positivist description of law is inaccurate; it does not seek to refute the idea that legal positivism is an inevitable form of legal theory in the world we inhabit. See, e.g., Goldsworthy, supra note 12, at 451–52 (arguing that the only plausible legal position from the “internal point of view” is a natural law position); Perry, supra note 13, at 347 (arguing that methodological positivism is inconsistent with the normativity of its descriptive object, law); Postema, supra note 8, at 165–66 (arguing that history of legal philosophy is a history of attempts to reconcile irreconcilable theses regarding legal normativity and social existence of legal institutions); Waldron, supra note 9, at 426, 432–33 (discussing “asymmetry” between legal theory as grasped by actors within the legal system from the internal point of view and as grasped by academic theorists).Google Scholar

⁶⁰ Fiss, , supra note 13, at 1008.Google Scholar

⁶¹ See, e.g., Perry, , supra note 13, at 312–14 (discussing Hart's mixture of methodological and substantive positivism); Waldron, supra note 9, at 432–33.Google Scholar

⁶² Fiss, , supra note 13, at 1016.Google Scholar

⁶³ See, e.g., sources cited supra note 39; Sugarman, supra note 38; Christopher Tomlins, Framing the Field of Law's Disciplinary Encounters: A Historical Narrative, 34 L. & Soc'y Rev. 911 (2000).Google Scholar

⁶⁴ See supra note 29 and accompanying text.Google Scholar

⁶⁵ See Becher, , supra note 39, at 32–44; Collins & Evans, supra note 39, at 14, 24; Catherine Kemp, The Uses of Abstraction: Remarks on the Interdisciplinary Efforts in Law and Philosophy, 74 Denver U. L. Rev. 877, 879–85 (1997); Ong, Walter J., Ramus, Method, and the Decay of Dialogue: From the Art of Dialogue to the Art of Reason 306 (2nd ed., 2004).Google Scholar

⁶⁶ See Abbott, Chaos, supra note 39, at 130–31, 137–38, 140–42; Collins & Evans, supra note 39, at 45–76; Collins, supra note 39, at 25–36.Google Scholar

⁶⁷ Abbott, Chaos, supra note 39, at 141; Collins & Evans, supra note 39, at 9.Google Scholar

⁶⁸ See Abbott, Chaos, supra note 39, at 130, 140, 147–49; Collins & Evans, supra note 39, at 7, 24–27, 30–31, 39, 86; Collins, supra note 39, at 25–36.Google Scholar

⁶⁹ Abbott, Chaos, supra note 39, at 137 (noting that “[k]knowledge experts compete with one another through redefinition of each other's work”); Collins, supra note 39, at 31, 71, 80.Google Scholar

⁷⁰ Abbott, Chaos, supra note 39, at 11–13, 138, 148.Google Scholar

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⁷² Cownie, Fiona, Legal Academics: Cultures and Identities 134, 198 (2004); Sugarman, , supra note 38, at 26, 29, 34; Tomlins, supra note 63, at 926–64.Google Scholar

⁷³ Abbott, Chaos, supra note 39, at 140–42, 148; Becher, supra note 39, at 70.Google Scholar

⁷⁴ See, e.g., Abbott, Chaos, supra note 39, at 145–47; Abbott, System of Professions, supra note 39, at 52–57, 79– 85, 102–104, 110–11, 118–21 (discussing phenomenon of “professional regression” into high-status positions of pure reflection on abstract knowledge linked with professional group); Becher, supra note 39, at 57; Cownie, supra note 72, at 198.Google Scholar

⁷⁵ Cownie, , supra note 72, at 128–29; Elizabeth Mertz, The Language of Law School: Learning to “Think Like a Lawyer” 12–30, 207–23 (2007).Google Scholar

⁷⁶ Lewis, , supra note 16, at 66.Google Scholar

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⁷⁹ See Balkin, J.M., The Crystalline Structure of Legal Thought, 39 Rutgers L. Rev. 1 (1986). Using a different vocabulary, Niklas Luhmann has explored this phenomenon extensively. See, e.g., Niklas Luhmann, A Sociological Theory of Law 41–48, 73–83 (1972).Google Scholar

⁸⁰ Harris, Angela P. & Schultz, Marjorie M., “A(nother) Critique of Pure Reason”: Toward Civic Virtue in Legal Education, 45 Stan. L. Rev. 1773, 1777 n.14 (1993) (noting prestige of appellate judges compared to trial judges in America, and of certain substantive fields of law involving more secondary-rule content and valuing “rationality” over “emotion”); Deborah Jones Merritt, Who Teaches Constitutional Law?, 11 Const. Comment. 145 (1994) (concluding that constitutional law is high-prestige specialty among American legal academics).Google Scholar

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⁸⁴ Cf. The discussion of Hart's argument for the necessity of adopting an internal point of view in Perry, supra note 29, at 97, 99–100.Google Scholar

⁸⁵ Thus, theory mirrors practice not because “to study metaphors, one must do so metaphorically,” the assumption criticized by Michael Moore in Interpreting Interpretation, in Law and Interpretation, supra note 29, at 1, 26, but because, in fact, law does have these features (along with others), and academic theorizing also does, in fact, have these features (along with others).Google Scholar

⁸⁶ My position is not inconsistent with Gerald Postema's argument that jurisprudence is an inherently practical inquiry, since his sense of “practical”—having to do with normativity and with reasons for action—overlaps with my sense of “theoretical,” which refers only to the abstract accounting for or explaining of a subject matter, regardless of whether the account or explanation is normative or descriptive. Postema, supra note 12.Google Scholar

⁸⁷ Although some accounts of legal positivism trace its origins to pre-modern Europe, see, for example, Conklin, supra note 43, at 14–32 (discussing Greek distinction between nomos and physis as analogous to positive law-natural law dichotomy), most accounts of legal positivism identify Thomas Hobbes as the first modern legal positivist. See, e.g., Bix, supra note 13, at 18; Dyzenhaus, supra note 8, at 708; 58–60; Gardner, supra note 13, 204–05; Waldron, supra note 13, at 171.Google Scholar

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⁹³ See Abbott, Chaos, supra note 39, at 147; Collins & Evans, supra note 39, at 70–76.Google Scholar

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⁹⁵ Bentham, Jeremy, Of Laws in General 1 (1782). Indeed, Bentham has been described as “anticipat[ing] various trends in twentieth-century philosophy of language (including Frege's and Wittgenstein's ‘context principle', some views of logical positivists, and the development of speech act theory).” See Timothy Endicott, Law and Language, Stanford Encyclopedia of Philosophy, available at http://plato.stanford.edu/entries/law-language/.Google Scholar

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¹⁰¹ In the Fragment on Government, for example, Bentham stresses the need to acknowledge higher-order norms or reasons when he criticizes Blackstone for excessive focus on the law-making power of the government (“the right of Government to make Laws”) to the neglect of the rules governing and restricting that power (“the duty of the Government to make Laws” and “the British Constitution”). See Jeremy Bentham, A Fragment on Government 6–7 (1776); id. at 53–55 (discussing sovereign's subjection to law). See also Schofield, supra note 16, at 59–60; Twining, supra note 13, at 121.Google Scholar

¹⁰² Hart, , supra note 27, at 18–25, 91–99.Google Scholar

¹⁰³ Austin, John, The Province of Jurisprudence Determined 257–58 (1863) (discussing constitutional “principles or maxims which the sovereign habitually observes,” which it “is bound or constrained to observe,” and which are known to those who might apply (nonlegal) sanctions to the sovereign in the event of its failure to observe these principles).Google Scholar

¹⁰⁴ Conklin, , supra note 43, at 143–44.Google Scholar

¹⁰⁵ See Hart, , supra note 2, at 614–15, 620.Google Scholar

¹⁰⁶ Hart, , supra note 27, at 79.Google Scholar

¹⁰⁷ See, e.g., Raz, , supra note 25, at 35–48, 141–48, 170–77.Google Scholar

¹⁰⁸ See, e.g., MacCormick, , Institutions, supra note 1, at 292–93 (discussing law, following Karl Popper's terminology, as a “World III” “thought-object”). See also Raz, Between, supra note 29, at 265, 269.Google Scholar

¹⁰⁹ Bix, , supra note 13, at 29.Google Scholar

¹¹⁰ Thus, John Finnis self-identifies and is identified by others as critical of legal positivism, yet he embraces a perspective on the nature of law similar in many ways to that described above. See Finnis, supra note 22. See also Bix, supra note 9, at 1613, 1624.Google Scholar

¹¹¹ See, e.g., Coleman, , supra note 10, at 145–46; Soper, supra note 12, at 507–08, 512. Compare Dyzenhaus, supra note 8, at 712, 716 (noting that a “Dworkinian” judge would not be a legal positivist) with Leiter, supra note 15, at 27 (noting that Dworkin might be considered an applied positivist seeking to describe adjudicative process), Perry, supra note 13, at 317 (noting that Dworkin might be classed as a methodological positivist).Google Scholar

¹¹² I am not the first to make this observation, but I hope in this section to suggest some implications that have not been noted before. For previous characterizations of particular adjudicators and judicial rhetoric as examples of legal positivism in practice, see, for example, G. Todd Butler, A Matter of Positivism: Evaluating the Legal Philosophy of Justice Antonin Scalia Under the Framework Set Forth by H.L.A. Hart, 12 Holy Cross J.L. & Pub. Pol'y 47, 48, 59 (2008) (concluding that Scalia is a positivist because his opinions betray his adherence to the social-facts thesis and the separation thesis, identified by Butler as the “two fundamental tenets” “share[d]” by “all legal positivists”); Beau James Brock, Mr. Justice Antonin Scalia: A Renaissance of Positivism and Predictability in Constitutional Adjudication, 51 La. L. Rev. 623 (1991); Allen, Anita J., Autonomy's Magic Wand: Abortion and Constitutional Interpretation, 72 B.U. L. Rev. 683, 693–94 (1992) (describing both Justice Scalia and Justice Thomas as positivists); George Kannar, The Constitutional Catechism of Antonin Scalia, 99 Yale L.J. 1297, 1307, 1310, 1308, 1339 (1990) (referring to Scalia as positivist).Google Scholar

¹¹³ See, e.g., Wetlaufer, Gerald B., Rhetoric and its Denial in Legal Discourse, 76 Va. L. Rev. 1545, 1555 (1990).Google Scholar

¹¹⁴ Brock, , supra note 112, at 632.Google Scholar

¹¹⁵ See sources cited supra note 112.Google Scholar

¹¹⁶ See Scalia, Antonin, A Matter of Interpretation: Federal Courts and the Law 25 (1997); Scalia, Antonin, Morality, Pragmatism, and the Legal Order, 9 Harv. J.L. & Pub. Pol'y 123, 125 (1986) (“I have never been able to isolate obligations of justice, except by defining them as those obligations that the law imposes.”). Similarly, Justice Scalia's dictum that “[t]here are times when even a bad rule is better than no rule at all” can be taken as an articulation of the separability thesis. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1179 (1989) [hereinafter Scalia, The Rule of Law].Google Scholar

¹¹⁷ See Zlotnick, David M., Jusice Scalia and His Critics: An Exploration of Scalia's Fidelity to His Constitutional Methodology, 48 Emory L.J. 1377, 1427–28 (1999) (arguing that Justice Scalia is more accurately characterized as a politician than as a judge); Stephen A. Newman, Political Advocacy on the Supreme Court: The Damaging Rhetoric of Antonin Scalia, 51 N. Y. L. Sch. L. Rev. 907 (2006).Google Scholar

¹¹⁸ E.g., Carden v. Arkoma Assocs., 494 U.S. 185, 196 (1990) (“The resolutions we have reached … can validly be characterized as technical, precedent-bound, and unresponsive to policy considerations … but … that has been the character of our jurisprudence in this field.”).Google Scholar

¹¹⁹ E.g., Penry v. Lynaugh, 492 U.S. 302, 359 (1989) (Scalia, J., concurring in part and dissenting in part) (“It is an unguided, emotional ‘moral response’ [in juries] that the [majority opinion] demands be allowed—an outpouring of personal reaction …, an unfocused sympathy. Not only have we never before said the Constitution requires this, but [in prior decisions we have] sought to eliminate precisely the unpredictability it produces.”). Commentators have noted that this disavowal is belied by Justice Scalia's use of colorful language to characterize views with which he disagrees. See generally Newman, supra note 117.Google Scholar

¹²⁰ In line with H.L.A. Hart, Justice Scalia has argued that the exclusion of certain considerations from the domain of legitimate legal reasons advances certainty and predictability. Compare Scalia, The Rule of Law, supra note 116, with Hart, supra note 27, at 42, 252 (arguing that a benefit of a rule of recognition is its enhancement of certainty and predictability).Google Scholar

¹²¹ Because we can only detect the occupation of a legal positivist position through statements like those made by Justice Scalia, the difference between occupying the institutional position associated with the generation of legal positivist discourse and the use of positivist rhetoric by one functioning within another institution may not be all that significant. Cf. Collins & Evans, supra note 39, at 86.Google Scholar

¹²² Dworkin, Ronald, Law's Empire 90 (1986) (“Jurisprudence is the general part of adjudication, silent prologue to every decision at law.”).Google Scholar

¹²³ Collins, & Evans, , supra note 39, at 14.Google Scholar

¹²⁴ Id. at 15.Google Scholar

¹²⁵ Id. at 70–76.Google Scholar

¹²⁶ Id. at 52–54, 60–63.Google Scholar

¹²⁷ As Collins and Evans argue, “distance lends enchantment,” that is, “the more distant one is from the locus of the creation of knowledge in space and time the more certain will the knowledge appear to be.” Id. at 20.Google Scholar

¹²⁸ See generally Kannar, , supra note 112; Zlotnick, supra note 117. See also Matthew Kramer's argument that legal officials often act for prudential rather than moral reasons, Kramer, supra note 4, at 64–77, and Jamal Greene's argument, not limited to Justice Scalia, about the reasons for the use of originalist rhetoric in judicial and popular discourse, Jamal Greene, Selling Originalism, 97 Geo. L.J. 657 (2009).Google Scholar

¹²⁹ See supra notes 116 & 117.Google Scholar

¹³⁰ For an overview of work taking this type of approach, see Mark Hall & Ron Wright, Systematic Content Analysis of Judicial Opinions, 96 Cal. L. Rev. 63 (2006).Google Scholar

¹³¹ This is similar to, but not quite the same as, the question of the descriptive accuracy of the positivist account of law. See, e.g., Bix, supra note 13, at 21 (noting that debate between Dworkin and Raz should be ultimately empirically resolvable); Benjamin C. Zipursky, The Model of Social Facts, in The Autonomy of Law, supra note 4, at 219, 243.Google Scholar

¹³² See, e.g., Brudney, James G. & Ditslear, Corey, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 Vand. L. Rev. 1 (2005); Cross, Frank B., The Significance of Statutory Interpretive Methodologies, 82 Notre Dame L. Rev. 1971 (2007); Czarnezki, Jason J. & Ford, William K., The Phantom Philosophy? An Empirical Investigation of Legal Interpretation, 65 Md. L. Rev. 841 (2006); Gates, John B. & Phelps, Glenn A., Intentionalism in Constitutional Opinions, 49:2 Pol. Research Q. 245 (June 1996); Howard, Robert M. & Segal, Jeffrey A., An Original Look at Originalism, 36 Law & Soc'y Rev. 113 (2002); Schacter, Jane S., The Confounding Common Law Originalism in Recent Supreme Court Statutory Intepretation: Implications for the Legislative History Debate and Beyond, 51 Stan. L. Rev. 1 (1998); Zeppos, Nicholas S., The Use of Authority in Statutory Interpretation: An Empirical Analysis, 70 Tex. L. Rev. 1073 (1992).Google Scholar

¹³³ Compare the assumptions of Dennis Patterson, Law and Truth (2000), with Einer Elhauge, Statutory Default Rules: How to Interpret Unclear Legislation (2008).Google Scholar

¹³⁴ See, e.g., Moore, , supra note 15, at 321–24; Philip Roberts, Observations on Method in Legal Theory and Linguistics, in Positivism Today, supra note 4, at 77, 81–92.Google Scholar

¹³⁵ Cf. Brian Leiter's call for a “naturalized jurisprudence” in Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 Tex. L. Rev. 266 (1997).Google Scholar

¹³⁶ See, e.g., Caldeira, Gregory A., Neither the Purse Nor the Sword: Dynamics of Public Confidence in the Supreme Court, 80 Am. Pol. Sci. Rev. 1209 (1986); Caldeira, Gregory A. & Gibson, James L., The Etiology of Public Support for the Supreme Court, 35 Am. J. Pol. Sci. 635 (1992); Casey, Gregory, Popular Perceptions of Supreme Court Rulings, 4 Am. Politics Q. 3 (1976); Durr, Robert H., Andrew D. Martin, & Christina Wohlbrecht, Ideological Divergence and Public Support for the Supreme Court, 44 Am. J. Pol. Sci. 768 (2000); Hoekstra, Valerie J., The Supreme Court and Local Public Opinion, 94 Am. Pol. Sci. Rev. 89 (2000); Jaros, Dean & Roper, Robert, The U.S. Supreme Court: Myth, Diffuse Support, Specific Support, and Legitimacy, 23 Am. Politics Q. 85 (1980); Johnson, Timothy R. & Martin, Andrew D., The Public's Conditional Response to Supreme Court Decisions, 92 Am. Pol. Sci. Rev. 299 (1998); Kessel, John, Public Perceptions of the Supreme Court, 10 Midwest J. Pol. Sci. 167 (1966); John M. Scheb II & Lyons, William, Judicial Behavior and Public Opinion: Popular Expectations Regarding the Factors that Influence Supreme Court Decisions, 23 Pol. Behavior 181 (2001).Google Scholar

¹³⁷ See, e.g., Joseph, Raz, The Authority of Law: Essays on Law and Morality (1983).Google Scholar

¹³⁸ See, e.g., Strauss, David A., On the Origin of Rules (with Apologies to Darwin): A Comment on Antonin Scalia's The Rule of Law as a Law of Rules, 75 U. Chi. L. Rev. 997, 998–99, 1002 (2008); Zlotnick, , supra note 117, at 1382– 87.Google Scholar

¹³⁹ This is a broader articulation of the point underlying Hart's practice conception of the rule of recognition. The issue is explored from different perspectives in, for example, Adler, supra note 10; Lewis, supra note 16; Andrei Marmor, Legal Conventionalism, in Hart's Postscript, supra note 4, at 193, 209–10.Google Scholar

¹⁴⁰ See, e.g., Becher, , supra note 39, at 38, 44; Glock, supra note 71, at 205, 223–24; Kemp, supra note 65 (noting that the evaluation of interdisciplinary work is hampered by use of the same terms in different disciplines in different senses, incomprehensible to non-specialists).Google Scholar

¹⁴¹ See supra notes 116, 138 and accompanying text.Google Scholar

¹⁴² See Green, Leslie, The Concept of Law Revisited, 94 Mich. L. Rev. 1687, 1698–700 (1995) (review of Hart, supra note 27) (noting that Hart did not exalt secondary rules or formal legal systems as a better form of law, but only described them as functionally necessary to sustain certain forms of social life); Green, supra note 19, at 1056–58 (noting that Hart described law as, by nature, prone to decay and vice, chiefly the vice of the alienation of law from its subjects); Waldron, supra note 13, at 175, 179, 181 (noting that Hart's account of law implied that the emergence of a legal system allows the more efficient perpetuation of injustice, and that the development and elaboration of secondary rules tends to make the population increasingly less familiar with primary rules). In The Concept of Law, Hart acknowledged that the general public usually does not have access to or subscribe to the rule of recognition. Hart, supra note 27, at 59–60, 110–11.Google Scholar

¹⁴³ Cf. Lewis, , supra note 16, at 66. See also supra notes 69–73, 127–128 and accompanying text.Google Scholar

¹⁴⁴ See, e.g., MacCormick, , supra note 13; Liam Murphy, The Political Question of The Concept of Law, in Hart's Postscript, supra note 4, at 371; Perry, supra note 13; Waldron, supra note 9.Google Scholar

¹⁴⁵ See, e.g., Abbott, System of Professions, supra note 39, at 52–57, 79–84; Cownie, supra note 72, at 58–69; Deborah Jones Merritt, Research and Teaching on Law Faculties: An Empirical Exploration, 73 Chi.-Kent L. Rev. 765 (1998).Google Scholar