An empirical foundation for legal positivism? The naturalized jurisprudence’s way

Abstract

The aim of this paper is a discussion of the naturalized jurisprudence’ route for legal positivism. Brian Leiter proposes that the naturalization of the legal theory provides an empirical foundation for the legal positivism. This naturalization is achieved by the resource to the best social science hypotheses about Law as a social phenomenon. Leiter argues that the best social science hypothesis about Law – for him, the attitudinal model for legal decision-making – vindicates an exclusive positivistic concept/theory about Law. Here I discusses his argument in the framework of naturalized jurisprudence: I endorse the general aim of a naturalized jurisprudence, however, I argue that the naturalized jurisprudence’s route for positivism (or for any substantive theoretical point about the nature of Law) is longer that Leiter seems to think. His empirical argument is insufficient to vindicate exclusive positivism, because the choose social science model is subject to different theoretical interpretations itself. If naturalized jurisprudence is to vindicate exclusive legal positivism, it is necessary to actively engage with theoretical criteria, not only empirical ones.