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![handle is hein.journals/hcjlpp12 and id is 47 raw text is: A MATTER OF POSITIVISM
A MATTER OF POSITIVISM: EVALUATING THE LEGAL
PHILOSOPHY OF JUSTICE ANTONIN SCALIA UNDER
THE FRAMEWORK SET FORTH BY H.L.A. HART
G. Todd Butler'
Government is not meant to save souls but to protect
life and property and serve the common good. Its
responsibility is the here, not the hereafter. - Justice Scalia
INTRODUCTION
On September 26, 1986, Antonin Scalia took his seat on the
United States Supreme Court.2 Since his appointment, observers
have touted the Associate Justice as the intellectual anchor of the
Court's conservative wing[.]3 Although many critics disagree
with Justice Scalia's approach to judicial decision-making, few
doubt his presence as a dominant figure both on the Supreme Court
and in American politics.4
The purpose of this essay is to analyze Justice Scalia's
judicial philosophy using the theory of legal positivism set forth
by the late H.L.A. Hart. In his book The Concept of Law, Hart
offered a legal theory self-described as a descriptive account
of the distinctive features of law in general as a complex social
phenomenon[.]5 Using Hart's framework, this essay analyzes
Justice Scalia's jurisprudence and identifies areas where he
conforms to Hart's theory of law and areas where he departs from
Hart's theory.
Specifically, Part II provides a brief overview of legal
positivism and highlights Hart's descriptive framework. Part III
begins with a positivistic examination of Justice Scalia's opinion
in Michael H. v. Gerald D., and is followed by an evaluation
of his approach regarding the interplay between Hart's rules of
adjudication and change. Finally, Part IV addresses the conflicting
views between Justice Scalia and Hart on the notion of judicial
discretion.
Volume XII (2008)](ViewImageLocal?handle=hein.journals/hcjlpp12&div=5&collection=&method=preview&ext=.png&size=3)