(LP*) Revisited

On John Gardner’s Reductionism of Legal Positivism

Abstract

The purpose of this work is to analyse and criticise John Gardner’s account (or, better still, reductive explanation) of legal positivism originally offered in his famous paper “Legal Positivism: 5^1/2 Myths”, which was originally published in 2001 and then republished in 2012’s Law as a Leap of Faith. It will be argued that Gardner’s attempt to reduce legal positivism to just one proposition (called “LP*”) fails to account for several characteristics of the phenomenon that we usually call “legal positivism”. This is especially clear when one contrasts Gardner’s attempt with those done by legal philosophers of the Civil Law tradition like Norberto Bobbio and Eugenio Bulygin. One could say that Gardner’s attempt is one rooted in the Common Law approach and tradition of legal philosophy but when one compares it with H.L.A. Hart’s account one discovers that it is not the case, that accounts such as those by Hart are similar to a certain extent to those of Bobbio and Bulygin. In the end it will be concluded that Gardner’s attempt fails due to one mayor problem in his approach: the lack of a due knowledge of the history of legal positivism itself, what we will call “the historical approach”.