Analytic Jurisprudence Confronted

Abstract

As we have seen, twentieth century legal theory was dominated by various versions of legal positivism, or positivism-inspired approaches, both in the relatively disciplined Austin-Hart tradition of analytic jurisprudence and in the more eclectic Holmes-realist tradition. Two notable challenges to this dominant focus arose in the decades circling the turn of the new century. One explicitly embraced its natural-law heritage, the other self-identified more with positivism; yet, both wove together features of historical and contemporary natural-law and positivist theories of law while resisting dominant positivist, or more accurately analytic, methodology. In doing so, they highlighted the strengths and weaknesses of the century’s contributions to jurisprudence and effaced the differences between the two traditional rival approaches to understanding the nature of law. In this chapter, we will explore the theories of John Finnis and Jeremy Waldron, taking them as representatives of jurisprudential thinking in a new key at the end of the old century and the early years of the new one.