Positivism’s Implosion

Abstract

Abstract: Kletzer’s recent book The Idea of a Pure Theory illustrates the incoherence of a legal theory’s methodological commitment to “purity,” and hence to independence from moral and empirical concerns. Unlike other self-styled “positivist” accounts that pay mere lip service to this methodological agenda, Kletzer helpfully spells it out and follows it through, to the point of expunging from his account anything bearing the resemblance of an argument from first principles. He associates moral with theological reasoning, and theological reasoning in turn with legal reasoning by appeal to validating criteria. But his account pays a high price for purity. The price is the account’s internal contradiction and inconsistency with a legal theory’s criteria of success. Reflection on Kletzer’s enterprise suggests that we have reason to reject a “pure” method in doing legal theory.