ABSTRACT
If they can get you asking the wrong questions, they don 't have to worry about the answers.
- Thomas Pynchon1
, The past forty years have not been kind to legal positivism. Ever since H.L.A. Hart's famous debate with Lon Fuller over the charge that German legal positivists were partly responsible for the rise of Hitler, positivism has been the target of frequent attacks by American lawyers.2 Its crities have tried, at various times, to connect positivism with a diverse and jointly inconsistent group of theories, such as legal formalism,3 legal realism,4 and originalism.s Furthermore, since the 1960s, legal positivism has been associated almost entirely with politically conservative forces in this country, especially with an approach to constitutional interpretation known
during the 1970s as "judicial restraint."6 Given the various contexts in wbich the term positivist has been used, it is clear that in recent years the term has become a pejorative in modem American legal circles.7
