Frederic R. Kellogg (The George Washington University) has posted The Construction of Legal Positivism and the Myth of Legal Indeterminacy (The Pluralist, Journal of the Society for the Advancement of American Philosophy, Forthcoming) on SSRN. Here is the abstract:
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This paper compares the pragmatist view of law as boundaryless and endogenous with the competing view – generally known as "legal positivism" – which sees law as separate, exogenous and autonomous. Both models are reflected in the methodology of American law; yet the two are at odds. They imply a deep inconsistency in our corporate belief in what law is, giving rise to radically different approaches to legal interpretation. According to the positivist model, law, considered as an adjudicative matrix, either succeeds or fails on its own. When deciding difficult cases this means the positivist must accept the problematic possibility of "legal indeterminacy".
