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Positivism and Realism

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In the philosophy of law, "positivism" generally stands for the view that the law is the will of the state, as expressed in legislation understood as a natural, historical fact. It is antithetical to any theory that posits "natural law," a Way Things Ought to Be to which those legislators must respond at the cost otherwise of losing their own legitimacy.

Also in the philosophy of law, "realism" stands for the view that there are no formal and direct inferences from rules of law to applications -- from what the legislators do to what the judges do -- or from precedents sent down from the appellate court up high to the decisions of the ground-level trial courts. Realism is a critique of formalism.

Positivism and realism as so defined are neither at odds nor allied. They don't address the same questions, they do not share the same foes (natural law theory is not identical to formalism). Historically, though, representatives of positivism and realism have sometimes acted like foes.

A recent publication by philosopher Brian Leiter contends that that "the most plausible version"of one is in fact a form of the other. They "form a united theoretical front against the moralizing and ideological obfuscators," which in his view include both the naturalists and the formalists.

I have only skimmed the paper, but as an admirer of Leiter's blog I offer a link to the paper here without further ado.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3304243


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