Overview

This book is the first of four volumes published under the series title The Judge and the Creative Positivist. Creative positivism is a legal philosophy that is an extension of H.L.A. Hart's legal positivist theory presented in his classic work The Concept of Law. Moskowitz identifies 'hard' cases that do not fit easily into Hart's rule of recognition; cases in which there are gaps, open texture or penumbral factual situations. He then modifies Hart's version of the discretionary theory that limits the exercise of discretion in making judicial decisions. The author is in a unique position to do so thanks to his having studied under Hart at Oxford, providing the latter at his request with a critique of the The Concept of Law while it was still in draft form. He demonstrates through the creative positivist theory how discretion is exercised in 'easy' cases too, where the law is determinate. In so doing, Moskowitz adds to Hart's primary and secondary rules a new set of tertiary rules. The Judge and the Umpire springs from a reaction against a supreme court judge's direct attempt to assimilate the two roles in his inaugural speech. In short, the author argues, because judges are authorized to create new legal rules, they are not like umpires who call balls and strikes with no authority to change the rules. This series will be invaluable to students of US jurisprudence and legal philosophy and provide researchers with a ground shifting new theory. This first volume examines six cases in detail, providing an introduction that is accessible to undergraduates and to general readers with an interest in the context of existing judicial decisions. www.thecreativepositivist.com Published by www.hugejam.com, 2022

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Persuasive and intelligent volume one in the series The Judge and the Creative Positivist ... THE JUDGE AND THE UMPIRE... by David H Moskowitz is destined to take its place among such classics as The Concept of Law by H.L.A.Hart . Moskowitz has written a book that is mandatory reading for Judges, Lawyers, students of jurisprudence, legal Philosophers and yet is a completely engaging read for anyone interested in the interaction of the law and the legal system. Moskowitz provides a vocabulary and a methodology for evaluating judicial decisions at every level and uses that vocabulary as a foundation for a new legal theory he calls creative positivism . Moskowitz posits that Correctness, justice, and wisdom are elemental to the judicial process and should be adopted as the semantics for evaluating judicial decisions. These elements are the foundation for his theory of creative positivism. In this book Moskowitz also thoughtfully explores such questions as how the law is at once dynamic and stable; why Judges and Umpires play on different fields; why there are no gaps in the law; judicial use of alternate sources; how Judges create new law; why there is a correct decision in every case and how the same case can be correct, unjust and wise. An important contribution to western jurisprudence.

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