Legal Positivism in American Jurisprudence
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This book represents a serious and sophisticated guide to modern American legal theory.
Acknowledgments1Why Study Legal Positivism?11.1Legal Positivism's Checkered Past11.2Sympathy for the Devil: Legal Positivism and Creon72Positivism and Formalism202.1Classical Legal Positivism and Classical Common Law Theory202.2Classical Legal Positivism and Sociological Positivism322.3Classical Legal Positivism and Legal Formalism393The Varieties of Formalism483.1Does Legal Formalism Exist?483.2Formalism and Antiformalism573.3Holmes and Antiformalism603.4Antiformalism and the Growth of Legal Realism753.5The Antiformalist Critique of Langdell and Beale834Legal Process and the Shadow of Positivism1134.1The Reevaluation of Realism1134.2The Development of Reasoned Elaboration1204.3The Jurisprudential Foundations of Legal Process1294.4Reasoned Elaboration as Noncontinuous Discussion1384.5The Valorization of Adjudication1434.6How Could Hart and Sacks Have Agreed with Fuller?1604.7Institutional Settlement and Pluralism1695The False Choice Between the Warren Court and Legal Process1795.1Wechsler and Neutral Principles1795.2Critical Reaction to Neutral Principles1835.3Saving Legal Process from Its Friends1995.4The Rise of Fundamental Rights2066Fundamental Rights and the Problem of Insatiability2176.1A Working Definition of Fundamental Rights2176.2The Fundamental Rights Approach and Natural Law2226.3The Strange Fate of Weak Epistemic Natural Law2346.4Does the Fundamental Rights Theorist Have an Epistemic Theory of Law?2566.5The Insatiability of Justice and Monistic Practical Reason2597New Legal Positivism and the Incorporation of Morality2677.1The Emergence of New Legal Positivism2677.2From Rules to Principles: Hart, Dworkin, and the Defense of Hart2697.3Nonincorporationism2777.4Incorporationism2877.5Incorporationism and the Problem of Insatiability2947.6Incorporationism and Identification307Index319
