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75 Notre Dame L. Rev. 1597 (1999-2000)


Legal positivism is an incoherent intellectual enterprise. It sets itself an explanatory task which it makes itself incapable of carrying through. In the result it offers its students purported and invalid derivations of ought from is.

In this brief Essay I note various features of legal positivism and its history, before trying to identify this incoherence at its heart. I do not mean to renege on my belief that reflections on law and legal theory are best carried forward without reference to unstable and parasitic academic categories, or labels, such as "positivism" (or "liberalism" or "conservatism," etc.). I use the term for convenience, to pick out a loose family of theories and theorists who are part of our contemporary conversation and who have used the term to describe their own theories, or the legal theories of writers they wish us to admire.


Reprinted with permission of the Notre Dame Law Review.



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