Positivism Challenged: Interpretation, Integrity, and Law

Abstract

Sometimes jurisprudence mimics the physical world, each new theory provoking an opposite and sometimes equally powerful theory. This is not an iron law, perhaps, but the claim is borne out by developments in Anglo-American jurisprudence the last quarter of the twentieth century. Hart’s powerful restatement of positivism at mid-century stimulated a revival of natural-law jurisprudence in the last two decades of the century. From different philosophical quarters, a variety of theories emerged pursuing quite different theoretical agendas, but all were united in their opposition to positivism. Rejecting Hart’s underlying empiricism, anti-positivist theories like those of John Finnis (1980, 1992, 1998) and Ernest Weinreb (1988, 1995) revived rationalist jurisprudence; Aristotle, Aquinas, and Kant, rather than Hume and Bentham, provided the philosophical foundations for these two quite different contemporary natural-law theories (see below, chap. 12). In contrast, Michael Moore (1985, 1992, 1995) offered a thoroughly modern, revisionist naturallaw theory, drawing on philosophical realism in contemporary metaphysics and meta-ethics. In Chapter 12, we will consider the most influential of these natural-law theories, but in this chapter we explore positivism’s most widely discussed challenger, Ronald Dworkin’s interpretive jurisprudence and “law as integrity.”