Legal Positivism and Faith In Law
| Published date | 01 January 2014 |
| Date | 01 January 2014 |
| DOI | http://doi.org/10.1111/1468-2230.12060 |
| Author | Thom Brooks |
REVIEW ARTICLE
Legal Positivism and Faith In Law
Thom Brooks*
John Gardner,Law as a Leap of Faith, Oxford: Oxford University Press, 2012, 314 pp,
hb £39.99.
Robert Nozick famously says that since John Rawls’s work on justice ‘political
philosophers now must either work within Rawls’s theory or explain why not’.1
H. L. A. Hart’s The Concept of Law2has exercised a similarly dominating presence
for legal philosophers. Much work has blossomed as a result and the latest
significant contribution is Law as a Leap of Faith by John Gardner, which seeks
to reimagine Hart’s influential work on legal positivism in new ways with an
exciting collection of eleven essays, including some previously unpublished
work.
Gardner is rather modest about his project’s philosophical ambitions. In his
preface, he writes that previous attempts to draft a general introduction for this
collection were unsatisfactory and ultimately abandoned. This is ‘because there
is no bigger picture. I don’t have a theory of law’ (v). Instead, he provides us with
‘quite a lot of thoughts about law in general and I can only hope that they turn
out to be consistent with each other’ (v). Gardner claims that philosophy is not
about ‘compiling as many little thoughts as possible into as few big thoughts as
possible, but the art of wearing every thought down to its rightful little size and
then keeping it in its rightful little place’ (v). Law as a Leap of Faith is a collection
of comments about the law rather than a complete theory of or about law, with
Gardner claiming to be engaged in a project of ‘unbundling’, aiming to clarify
our understanding of law, in large part through a re-evaluation of Hart’s legacy,
and to see how it might be improved further.
Gardner’s modesty is misplaced. He advises his readers ‘you will struggle to
find any conspicuously novel ideas about law in the book’ (v). I disagree: this is
not a mere assembly of interesting, but disconnected thoughts spread across
idiosyncratic themes. Instead, this is an impressive body of work that gives
expression to a powerful vision about the aims and limited ambitions of legal
positivism. While Gardner does unbundle muddled arguments and help us
reassess a more compelling view about Hart’s legacy, this is more than a critique
of where others have gone wrong and it is best considered as essays that challenge
some fundamental tenets about the commitments and limits of legal positivism as
well as the relation of law and morality more broadly. I will address Gardner’s
*Durham Law School.
1 R. Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974) 183.
2 H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 3rd ed, 2012).
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© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(1) MLR 139–147
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
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