In an essay published just over 20 years ago, Frederick Schauer and Virginia J. Wise
noted that “[l]egal positivism refuses to go away.”1 “Unlike Scandinavian Realism,
historicism, and numerous other legal theories surviving only in the museums of
jurisprudential archaeology,”2 Schauer and Wise went on, “legal positivism is still
with us.”3 The reason for this “persistence,”4 they further maintained, is that “legal
positivism is the only account of the nature of law that attempts to explain the
features that lead us to think of law itself as a socially important and analytically
useful category
1