To summarize: Coleman’s version of legal positivism is best described as anti-positivism. He has wholly decamped from the philosophical heritage he undertakes to defend. He covers his retreat by claiming to remain true to the cardinal tenet of positivism, which is that law is always a matter of convention. But his use of convention pursues victory through surrender. His first strategy trivializes the idea of a convention and makes it practically and theoretically useless. His second strategy, which hopes to convert cooperation into convention, fails because cooperation need not depend on convention, and because a legal system need not, as a matter of conceptual necessity, depend on full cooperation. We have made no progress in understanding the persistence of positivism’s acolytes—in understanding why Coleman, for example, is so anxious to fly the flag of positivism that he is willing to abandon every article of its faith to do so.
Note from KBJ: At one time, legal positivism was a bold, revisionary thesis. It was supposed to show two things: that what some people took to be law wasn’t, and that what some people took not to be law was. In the hands of theorists such as Jules Coleman, it has become bland, conservative, and virtually indistinguishable from natural law (as I show here). The same thing happened to utilitarianism, which is now said to be able to accommodate rights and other commonsense deontological concepts. Utilitarianism was supposed to challenge and displace common sense, not rationalize it. Jeremy Bentham and John Austin are rolling over in their graves.
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