caa a22 4500 388050918 CHVBK 20180307125053.0 cr unu---uuuuu 161130e199812 xx s 000 0 eng 10.1017/S1352325200001130 doi S1352325200001130 pii (NATIONALLICENCE)cambridge-10.1017/S1352325200001130 Leiter Brian University of Texas, Austin Realism, Hard Positivism, and Conceptual Analysis [Elektronische Daten] [Brian Leiter] The American Legal Realists, as I read them, are tacit legal positivists: they presuppose views about the criteria of legality that have affinities with positivist accounts of law in the sense that they employ primarily pedigree tests of legal validity. Ever since Ronald Dworkin's well-known critique of H.L.A. Hart's positivism a generation ago, however, it has been hotly contested whether there is anything about positivism as a legal theory that requires that tests of legal validity be pedigree tests. So-called Soft or Inclusive versions of positivism are willing to relax the restrictions on the content of a Rule of Recognition to admit non-pedigree criteria of legal validity; Hard or Exclusive versons of positivism deny that such a move is compatible with the central commitments of positivism. Hard Positivism, of which Joseph Raz has been the leading proponent, thus competes with various Soft Positivisms, defended by, among others, Coleman, Lyons, Soper, Waluchow, and now, explicitly, Hart himself in the "Postscript.” If the Realists are positivists, as I claim, then it cannot be the case that Soft Positivism is a genuinely positivistic doctrine. But there is more at stake here than just labels. Realist arguments for the indeterminacy of law—arguments central to the whole Realist enterprise—depend crucially on their tacit Hard Positivism. If, in fact, positivism has a more relaxed view of the criteria of legality than Hard Positivism supposes, then Realist arguments depend on unsound tacit premises about legal validity. What is at stake, then, is not whether Realists should be called (tacit) "Positivists” or merely (tacit) "Hard Positivists,” but whether their underlying view of the criteria of legality is sound. It can only be so if the best arguments favor Hard Positivism. Copyright © Cambridge University Press 1998 Legal Theory Cambridge University Press 4/4(1998-12), 533-547 1352-3252 4:4<533 1998 4 LEG https://doi.org/10.1017/S1352325200001130 text/html Onlinezugriff via DOI 1 research-article jats NATIONALLICENCE 856 40 https://doi.org/10.1017/S1352325200001130 text/html Onlinezugriff via DOI NATIONALLICENCE 100 1- Leiter Brian University of Texas, Austin NATIONALLICENCE 773 0- Legal Theory Cambridge University Press 4/4(1998-12), 533-547 1352-3252 4:4<533 1998 4 LEG CC0 http://creativecommons.org/publicdomain/zero/1.0 nationallicence BK010053 XK010053 XK010000 NATIONALLICENCE NATIONALLICENCE NL-cambridge