Professor Frederick Schauer employs the views of historically influential legal positivists instrumentally in this way. He suggests that some of their now-neglected views warrant reconsideration of the narrow focus of contemporary positivism: “These commitments [of contemporary positivism] may serve their purposes, but if they have also caused our understanding of the phenomenon of law to be truncated then the benefits may not be worth the costs.” He therefore relies on the stronger of the instrumental uses of jurisprudential history: history as a goad to reflection on reigning jurisprudential assumptions. According to Schauer, in explicating and defending legal positivism, legal theorists over time retained and emphasized certain views of some historically influential legal positivists and ignored their views about law reform, adjudication, and the place of sanctions in an account of law. These ignored views make contemporary legal positivism more restricted than its classical predecessors, Schauer suggests, both in what it takes to be at the core of positivism and positivism’s implications for other parts of legal theory. Schauer believes that the ignored positions—“paths not taken”—can help inform current legal theory generally.
I am less optimistic about the use of the history of jurisprudence for this purpose. In the case of legal positivism and other positions taken within legal theory, the history of paths not taken is unlikely to change the minds of legal theorists. Legal theorists likely are moved by theoretical considerations and arguments, not exegetical insights into the works of their predecessors. The character of legal theory, I will suggest, is likely to be the result of argument untied to the consideration of the history of jurisprudence or the revelation of ignored jurisprudential positions.
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