Review of Margaret Martin's Judging Positivism

6 Pages Posted: 21 Aug 2015

See all articles by Andrew Halpin

Andrew Halpin

National University of Singapore (NUS) - Faculty of Law

Date Written: August 19, 2015

Abstract

This review of Margaret Martin’s book, Judging Positivism, considers the three levels on which her book operates, as an intricate study of the principal works of Joseph Raz; a challenging critique of legal positivism; and a thoughtful reflection on the potential of legal theory. The main focus of the review is Martin’s argument against Raz’s exclusive positivism, which proceeds by identifying a change in the premises or theses of Raz’s theory of law over the course of his different writings, and by then making an accusation of inconsistency and incoherence against Raz. The review examines the nature of Martin’s accusation and suggests some possible responses to it. In doing so, a notion of staggered exclusionism is proposed, and the importance of a distinction between two forms of social cooperation through law is considered. A form of social cooperation as imposed order on dissonant interests, attributed to Raz, is contrasted with the view of Postema that social cooperation through law is a matter of harmonious order with the discovery of common interests. The importance of the distinction is considered primarily in relation to Martin’s criticism of Raz; but it also has implications for the relationship between Martin’s assessment of Raz and her wider rejection of legal positivism, and for her related concerns for the potential of legal theory.

Keywords: Martin, Raz, legal positivism, exclusive legal positivism, normative legal theory, scope of legal theory

Suggested Citation

Halpin, Andrew, Review of Margaret Martin's Judging Positivism (August 19, 2015). Canadian Journal of Law and Jurisprudence, Vol. 28, No. 2, 2015, Available at SSRN: https://ssrn.com/abstract=2647363

Andrew Halpin (Contact Author)

National University of Singapore (NUS) - Faculty of Law ( email )

469G Bukit Timah Road
Eu Tong Sen Building
Singapore, 259776
Singapore

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