Frederick Schauer

The Path Dependence of Legal Positivism

PUBLISHER
William & Mary Law Review
DATE
2015
 

Abstract

One advantage of not being a professional (or even amateur) historian is that such non-professional status allows one to be unashamedly instrumental about history. Although genuine historians bridle at the thought that we should investigate history because it makes us better people or better decision makers, as opposed simply to providing knowledge for its own sake, the rest of us have the freedom to use history for a wider range of other and more instrumental purposes.

Among the instrumental uses of history is the way in which historical inquiry can often allow us to recover, for current use, ideas whose past currency has been extinguished by the passage of time. And although ideas can be lost for many reasons, including of course their unsoundness, one of the most interesting ways in which potentially valuable ideas of the past can be forgotten is through the mechanism of intellectual path-dependence. If an idea at some time in the past possessed, say, two valuable features, and if one of those features becomes popular, salient, interesting, or important, the popular or salient or interesting or important feature will likely be discussed, explicated, and embellished. These explications and embellishments will themselves then be discussed and further explicated and embellished, and so on, in a manner that resembles the branches of a tree as they generate further branches and then twigs and then twiglets and leaves. But just as looking at all of the smaller sub-branches of one main branch may blind us to the existence of other main branches, so too may a focus on the subsequent elaborations of one part of some main idea lead us to ignore the other parts, parts whose importance may be forgotten precisely as a consequence of the process of path-dependence just described. And thus the path-dependence I posit here is largely a sociological or psychological, rather than formal, process. It is not that focusing on one of multiple facets of an idea makes the other facets unavailable in a logical or inexorable sense. But the earlier selective attention does serve to make those other facets sociologically and psychologically more obscure with the passage of time, rendering the other facets less salient, more difficult to retrieve, and, most importantly, increasingly harder to use.

And so it is with legal positivism. My goal in this Article is to examine three important topics in legal theory and to expose how they were all at one time part of the perspective that was once understood as legal positivism, and which bears an ancestral relationship to modern legal positivism. The first of these dimensions is the relationship between legal theory and legal reform. Specifically, that an account of the nature of law might be developed not simply as an aid to understanding or accurate description, but instead as a way of facilitating reform of law itself or reform of how a society understands the idea of law. And thus the view that theories or accounts of law might be generated for the purpose of conceptual or legal reform is the first of the three dimensions of yesterday’s legal positivism that appears largely to have been obscured or even buried by the passage of time.

Citation

Frederick Schauer, The Path Dependence of Legal Positivism, 56 William & Mary Law Review 1613-1636 (2015).
 

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