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...
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Praying the Gay Away Back in July 2015 I wrote, in my round-up of THAT recently completed SCOTUS term, about the Court's decision to deny cert in KING v. CHRISTIE. This left standing the decision of the 3d Circuit C of A upholding New Jersey's ban on"conversion therapy," that is, on giving the "pray the gay away" stuff the mantle of science. Two years later, there is another denial of cert to report in much the same situation. Again the Court preserved a legislative rebuke to such therapy by denying cert. http://www.reuters.com/article/usa-court-gayconversion-idUSL1N1I31A6 There was a shade of difference. The earlier case was presented as a "free speech" challenge, this one as a "freedom of religion" challenge. Since Hobby Lobby, the freedom-of-religion clause has been very chic in right-of-center circles. Personally, though, I thought that the earlier challenge had some prima facie plausibility, as I said at the time. I can...