Notre Dame Law School NDLScholarship Journal Articles Publications 1959 The trS aw Man of Legal Positivism Thomas F. Broden Notre Dame Law School,
[email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Jurisprudence Commons, and the Legal History Commons Recommended Citation Thomas F. Broden, The Straw Man of Legal Positivism, 34 Notre Dame L. 530 (1958-1959). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/914 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact
[email protected]. THE STRAW MAN OF LEGAL POSITIVISM Thomas Broden, Jr.* In 1951, a distinguished U.S. Court of Appeals Judge said: John Austin, the patron saint of the modem positivists, began the law's descent to the Avernus of unfaith by proposing to distin- guish morals from law. Some of the modern but less moderate prag- matists have continued it by proposing to divorce morals from law, while the down-right radicals among them, including the fellow travelers, preferring headlong descent, propose, as Nietzsche did, to abolish morals altogether.' Two years ago a respected political scientist wrote, recently jurisprudence has been befuddled by a school, lately fashion- able in America, which, in the last resort, as Mr. Justice Holmes cynically pointed out, reduces the bases of law to the question, "who can kill whom?" 2 In 1949 an editorial in the American Bar Association Journal opined that, our difficulties have been increased by the fact that at this critical period many of our statesmen, judges, and particularly our law teachers, had abandoned natural law and had become champions of positivism or what some termed legal realism ...