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Carlson on Coleman & Legal Realsim

By Lawrence Solum

David Gray Carlson (Yeshiva University - Benjamin N. Cardozo School of Law) has posted The Collapse of Positivist Jurisprudence Into Legal Realism After Dworkin on SSRN. Here is the abstract:

After Dworkin's critiques of the work of H.L.A. Hart, positivism has struggled to respond. In the course of doing so, it split into two branches ? exclusive and inclusive positivism. Jules Coleman is a leader of the inclusive position (which he re-names incorporationism, because his jurisprudence does not rule out "incorporation" of morality into law). In its limit case, law might be nothing but moral intuition. This article shows how Hegel demolished this position almost two centuries ago. In addition, a review of Coleman's jurisprudence shows that "rules of recognition" (which Coleman holds as conditions for the possibility of law) are in fact complete superfluities. Coleman could have re-issued his jurisprudence on the basis of unruly recognition of primary rules of law. Also, Coleman has rejected Hart's internal point of view. As a result, Coleman's jurisprudence cannot avoid collapsing into legal realism, common enemy to positivists and Dworkinians alike. Coleman has also admitted that, as a corollary to his position, it is necessary to concede that law need have no practical consequences whatever for human beings. This is precisely the claim of legal realism. Therefore, the collapse of Coleman's positivism into legal realism is complete and irreversible. Only in Dworkinian jurisprudence can law make a practical difference. Coleman's more recent work contradicts this theme. Recently, Coleman has abandoned the "separation thesis" ? that law is not necessarily connected with morality. In this work, Coleman's jurisprudence simply collapses into Dworkinianism. Under either vector of these contradictory jurisprudences, Coleman can hold no ground against the competing views of Dworkinianism and legal realism. This paper supplements an earlier paper ("Russell's Paradox and Legal Positivism") which uses set theory to show that exclusive positivism (necessary to the claim that law is separable from morality) is logically contradictory. If these two papers are correct, then legal positivism (in both its guises) is invalid. Our choice, then, is between legal realism (i.e., nihilism) and Dworkin's interpretive theory of jurisprudence.

Full post as published by Legal Theory Blog on February 26, 2010 (boomark / email).