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I make jokes about exclusive legal positivism, so an explainer about what it is and why it's ridiculous. 
A thread /1 https://twitter.com/scottjshapiro/status/1355529410691137540
A thread /1 https://twitter.com/scottjshapiro/status/1355529410691137540
By relying solely on process and hierarchy (i.e. RoR) to validate the law, ELPs create a rather sterile and hollow understanding of law that diminishes space for TWAIL and CLS critiques and minimizes the role that politics, power, and yes even morality play in the law. /2
To start with, jurisprudence is meant to address what the law is, not what it should be. In my view this is where ELPs get confused. They want rules to only be authoritative after they have been formally recognized via the RoR. But that doesn't reflect how law operates irl. /3
Indeterminacy is pervasive in the legal system. So government actors, like judges when interpreting the law or administrators when implementing the law, regularly make value judgments, prioritizing certain values over others. /4
What might seem like a neutral decision to prioritize say damages over specific performance in a breach of a contract case in fact relies on value judgments about what is most important to a functioning society, in this case economic expediency over the sanctity of a promise./5
These value judgments are not outside of the law, but rather embedded in the law, via standards such as âreasonablenessâ âdue careâ and âevolving standards of decency.â /6
In such cases, judges often rely on their own value judgments to understand what the law requires. Or they try to discern what societal mores are on a certain legal question. Case in point:
https://twitter.com/Rachel_E_Lopez/status/1355138311166291970?s=20 /7
https://twitter.com/Rachel_E_Lopez/status/1355138311166291970?s=20 /7
I am not saying that it should be this way, but rather that it is. I also think that there is a more existential role that morality plays, but I'll save that for another day. Anyways just my thoughts, I'm sure others won't agree. /8
