Is Post-Positivism Possible?

Abstract

In some of his last published works, Neil MacCormick began to refer to his theoretical position as “post-positivist.” In light of the widely perceived limitations of the “positivist” label, this self-identification might seem prudent. Was it anything more? Was MacCormick's position really post-positivist? In this paper, I argue that it was not, but that this need not be viewed as a failing of MacCormick's work, since there is a sense in which modern jurisprudence cannot and need not hope to become generally post-positivist. More specifically, given the institutional context in which legal scholarship is produced, positivism is likely to be an inevitable (if not necessarily dominant) mode of theorizing about law. Yet much informative work remains to be done under the positivist rubric—not just along the lines suggested by MacCormick, but along others as well.