Concerning the Nature of Positive Law

Abstract

Legal philosophy, however, does not exhibit much evidence of having benefited from the strategic vantage-point thus conferred upon it. This is apparent in many essays concerning the nature of law, where it is difficult, if not impossible, to detect any deeper insights than the ancient philosophers had. Instead we are apt to find narrow interpretations by specialists interested in a particular phase of law. Many legal philosophers believe, of course, that the term positive is very ambiguous. They have usually been content to state meanings, ending their analysis with the implication, You may take your choice. Thus, whatever Kelsen's dialectic actually means, he argues that (a) the definition of law is purely a matter of taste and (b) various legal philosophers have had different tastes in this regard-hence there is no better or objective determination of the issue. This view is a reflection of the theory that definition is nominal. 1 On the other hand, the common sense view is that so far as an inquiry is empirical, the definitions used must represent the facts. This approach cannot be dismissed as the common man's naivete. When a scientist defines his terms, he, too, implies that his definitions are descriptive. There is, accordingly, a tentativeness regarding his definitions since his knowledge of the facts is limited and changing. But he certainly intends to represent the existing knowledge in his definitions. His definitions can therefore be challenged as incorrect or inadequate representations of the facts. This same responsibility to the relevant facts should also characterize the definition of law. That view is rendered more persuasive when one observes that nominal definitions of law stimulate the use of logical and analytical methods and discourage persevering study of the facts with