Judging Positivism is a critical exploration of the method and substance of legal positivism. Margaret Martin is primarily concerned with the manner in which theorists who adopt the dominant positivist paradigm ask a limited set of questions and offer an equally limited set of answers, artificially circumscribing the field of legal philosophy in the process. The book focuses primarily but not exclusively on the writings of prominent legal positivist, Joseph Raz. Martin argues that Raz's theory has changed over time and that these changes have led to deep inconsistencies and incoherencies in his account. One re-occurring theme in the book is that Razian positivism collapses from within. In the process of defending his own position, Raz is led to support the views of many of his main rivals, namely, Ronald Dworkin, the legal realists and the normative positivists. The internal collapse of Razian positivism proves to be instructive. Promising paths of inquiry come into view and questions that have been suppressed or marginalised by positivists re-emerge ready for curious minds to reflect on anew. The broader vision of jurisprudential inquiry defended in this book re-connects philosophy with the work of practitioners and the worries of law's subjects, bringing into focus the relevance of legal philosophy for lawyers and laymen alike.
Margaret Martin is an Associate Professor in the Faculty of Law at Western University. She completed her PhD in 2006 at the University of Cambridge. She also holds an MA in Philosophy and a BA Hons in Philosophy and English Literature from McMaster University and an MSL from the University of Toronto. She teaches Legal Philosophy, Constitutional Law and International Criminal Law.
1. Setting the Stage: Practical Reason and Norms Reconsidered I. Practical Reason and Norms and Exclusionary Reasons II. Exclusionary Reasons and the Legal Sphere: Issues of Method and Substance III. Between Chaos and Order: Judges as Wielders of Our Collective Fate IV. Common Law Systems: A Counter-Example 2. Between Fact and Value I. The Sources Thesis Defined and Defended II. Raz's Rule-Plus-Exception Model III. Casting Law in a New Light IV. Identifying Rules: A Herculean Task V. Between Fact and Value 3. The Perils of Positivism: Why Raz becomes a Realist I. Law's Autonomy Considered and Reconsidered II. Legal Rights and Legal Realism III. Back to the Settled Core IV. Law's Claim to Authority: Raz's Way Out? V. A Story about Law and Order Retold 4. Raz's The Morality of Freedom: Two Models of Authority I. Raz's Focal Concept of Authority II. The Analogy of the Arbitrator: From Consent to Normal Justification III. Pre-emption versus Normal Justification: Seeking Coherence IV. Methodology: The Source of the Tension? V. Co-ordination Problems and Razian Authority 5. Law as Public Practical Reasons Revisited I. The Sources Thesis: Defined and Redefined II. Sources, Certainty, and Public Practical Reasons III. The Weak Autonomy Thesis IV. The Sources Thesis and Interpretation: Nuance or Nuisance? V. Why Reason like Raz? VI. Law and Order: Some Reflections on Method 6. The Path Not Taken I. Hart and the Internal Aspect of Rules II. A Little Help from Holmes III. Between Chaos and Legality: The Sources of Certainty IV. Content Matters V. Is Law Merely Conventional? 7. The Raz-Postema Debate Deconstructed Law as Public Practical Reason: Raz versus Postema A. Law's Ultimate Aspiration is Justice B. Law's Overarching Function C. The Autonomy Thesis D. The Limited Domain Thesis E. The Argument from Co-operation F. Methodology and Law's Importance G. The Relationship between the Pre-emption Thesis and the Sources Thesis H. The Certainty Thesis I. The Sources Thesis J. The Pre-emption Thesis