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Publication Title

Washington University Jurisprudence Review

Abstract

For a long time philosophy has been unique among the humanities for seeking closer alliance with the sciences. In this Article I examine the place of science in relation to legal positivism. I argue that, historically, legal positivism has been advanced by theorists who were also positivists in the sense the term is used in the philosophy of social science: they were committed to the idea that the explanation of social phenomena should be conducted using similar methods to those used in the natural sciences. I then argue that since around 1960 jurisprudence, and legal positivism in particular, has undergone change toward anti-positivism. Central to this trend has been the idea that proper jurisprudential inquiry must be conducted from the ―internal point of view.‖ This view amounted to an attempt to combine a scientific-like aim of neutral description with a humanistic method of inquiry. It thus did not entirely abandon its links with scientific inquiry, but it has radically changed their nature. I show that this stance has had a negative impact of narrowing both the range of issues discussed and the kind of method considered appropriate for discussing these questions. I then argue that to counter these isolationist trends jurisprudence would benefit from reorientation of its midway position between science and the humanities in the opposite direction: its aims should be those traditionally associated with the humanities but it should try to bring new insight to these questions with a methodology much closer to that of the sciences.