Limited-Domain Positivism as an Empirical Proposition

In his typically clear statement of a provocative thesis, Fred Schauer, along with his co-author, Virginia Wise, ask us to think about positivism in a new way. Their claim has two parts. First, Schauer and Wise redefine legal positivism as an empirical claim about the limited domain of information that legal decisionmakers use to make decisions. Second, they begin testing the extent to which our legal system in fact reflects this limited domain. Ironically, Schauer and Wise believe that positivism, so conceived, is "increasingly false." Thus, their two-part approach is, first, to declare that legal positivism should be conceived of as a claim about law's limited domain; second, that so conceived, our legal system is diminishingly "positivistic." In this Article, I propose to restate and give a visual depiction of the Schauer/Wise thesis. Then, I will make a few observations on the possibilities and difficulties of testing the extent to which our legal system reflects limited-domain positivism. Finally, I will link this reformulation of legal positivism to social science methodology in general and, more particularly, to its antecedents in logical positivism.