Did someone say legal positivism?

I'm most familiar with the international variant. Here's why I find it misleading.

THREAD /1 https://twitter.com/EtkinBasak/status/1356361883289350151

The short answer is that legal positivism doesn't adequately account for the inherent contingency in the law. And because it doesn't, it doesn't accurately describe what the law is, as people actually experience it. /2

Let me back up. The central Q for legal positivists (as for much analytic jurisprudence) is, "what is law?" /3

But it seems to me that they're asking a much more specific Q. They're asking a Q that goes more like this: Put yourself in the position of someone who is trying as hard as possible to obey the law; what for that person counts as law, and what does not? /4

(The person they usually have in mind is a judge or other state official, faithfully following the law.) /5

At the point where that person says, "I dunno; I've exhausted the available methods for finding the law, and I still don't have an answer; it's just a judgment call," the law essentially runs out. /6

See, e.g., this tweet by @scottjshapiro. Scott says that, when a judge makes a judgment call--exercises her discretion--she is no longer finding law; she is making it. The thing she decides in her discretion is not law until she makes it law. /7 https://twitter.com/scottjshapiro/status/1355875673680834563

Now, a judge has authority to make law. So, when a judge issues a decision in her discretion, we can say, "yup, that decision is law because it was made by someone with authority to decide the law." /8

But if the person who makes the judgment call lacks such authority, and if no one who has it steps in to "fill the gap," then, according to positivism, the law essentially runs out. We are in the zone of not-law or just power or politics. /9

See, e.g., @kevinjonheller here: https://twitter.com/kevinjonheller/status/1356009255682248706. /10

Ok, that's the logic. Why do I find it misleading? Two reasons (for now). First, I don't think it accurately describes even what faithful servants to the law--who try their best to follow it--in the ordinary course do. /11

These people are not just technicians mechanically applying the law. They do not exercise discretion only in "hard" or "rare" cases (quoting Scott and Kevin). They exercise discretion all the time, in ways large and small, when they are trying to follow the law. /12

They have to decide what methods to use; how to prioritize conflicting sources; what to make of precedents that are sort-of-but-not-directly on point. Etc. /13

They have no choice but to make these judgment calls b/c legal authority is not just fixed for people to find. It is inherently contingent and dimensional.

So problem 1: positivism obscures the extent to which people--even faithful servants--exercise agency over the law. /14

Second, it's wrong to suggest that law runs out at the point where someone would say, "it's a judgment call." This is true even for judges. Judges who reach that point don't say, "fuck if I know; I'll go with x." /15

They reason their way to x. They harness authority--i.e., law--to explain how they got to x. The authority that they harness doesn't require x. They still have to make judgment calls. But that doesn't mean that, insofar as they make these calls, there is no law. /16

This is especially true outside courtroom settings. Take the hypo I posed to Kevin: https://twitter.com/MonicaHakimi/status/1355938240021356545 /17

Maybe each treaty party will say, "fuck it; there's no law." But imagine that they meet and try to sort out what they should do "under" the treaty. When they're negotiating "what the law requires," it's (again) misleading to say that they're in a law-free zone. /18

It's more accurate to say that there is law but the law is unsettled and leaves room for the exercise of discretion. /19

So, positivists: for the one or two of you who might still be reading this thread (which is way, way too long), what am I missing? /20