Legal Positivism and Originalist Interpretation

Abstract

The topic I have been assigned for this keynote address is the relationship between legal positivism and originalist theories of interpretation. Fortunately for me, there is indeed a relationship between these two things, and a strong one at that. Or so I shall contend.

My plan is as follows: I shall first give an account of legal positivism. That account will be brief, no more than a sketch, but hopefully not a caricature. But it will be sufficient for demonstrating the relationship between legal positivism and originalist interpretation.

After my brief portrayal of legal positivism, I shall turn my attention to originalist interpretation. I shall show why legal positivism supports originalism. And I shall conclude by discussing various objections to originalism, objections that nevertheless can be successfully parried.

Keywords: positivism, originalism, intended meaning, public meaning, rules, principles, standards, concepts, legal philsosophy (jurisprudence)

JEL Classification: K10