What is Creative Positivism?
CREATIVE POSITIVISM EXPANDS the legal positivist theory presented by H.L.A. Hart in his classic work The Concept of Law and modifies the discretionary theory within it, delimiting its judicial application.
Moskowitz presents and argues for these changes to Hart’s legal philosophy, chapter by chapter, case by case, in his book series The Judge and the Creative Positivist.
The culmination of which is the fourth volume, due out later this year, that applies Creative Positivist theory to fixing the US Constitution and the Supreme Court.
Judges are [not] like umpires
“Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role.”
Chief Justice John G. Roberts, Jr.
Moskowitz, in chapter 1 of volume 1, responds:
"This is a supreme mischaracterisation of what a judge does."
What a judge does
or
Decisions, decisions, decisions
IN A ROLE WHERE DISCRETION IS LIMITED, a judge (like an umpire) makes either a correct decision or an incorrect decision. But, the Creative Positivist argues, we have progressed beyond that traditionalist theory. Modern application of law must allow for "incorrect decisions". Decisions can be good or just or wise and be incorrect. "Do not confuse validity with correctness," writes Moskowitz. "An incorrect decision changes the law, but it is still a valid decision." The author's new theory of Creative Positivism looks to "alternate sources" such as wisdom and fairness to create new legal rules.
For a better understanding, in volume one of his series Moskowitz uses real cases to demonstrate these different types of decision making. Professor Dempsey, in her review of the series, observes how: David Moskowitz is masterful in explaining complex legal issues clearly and accessibly. She continues, Even non-specialist readers will come away with a firm grasp of the legal issues at stake and how they fit into Moskowitz’s broader philosophical framework. Professor Dempsey's summary can be read in full, along with other testimonials, on the reviews page.
"The Judge and the Creative Positivist is an incisive and deeply learned quartet of books that extend the legal philosophy of the great English jurisprudent HLA Hart to better account for the creative aspects of judging that have long bedeviled standard positivist analyses of law.
Authored by David Moskowitz, a former student of Hart’s and a practicing attorney of extraordinary and wide-ranging accomplishments, the series deserves to be read by all serious students of American law."
Mitchell Berman, Professor, Penn Carey Law School
David H. Moskowitz
DAVID H. MOSKOWITZ practiced law as an attorney for 50 years and has now retired from its practice. He is still involved in real estate development and construction and in biopharmaceutical ventures.
Graduating from college (Penn State) with a degree in accounting, David finished at Villanova Law School, three years later in 1960. Before practicing law, however, he decided obtain an education in many subjects, including history, literature, economics, sociology, psychology, politics and philosophy.
David was admitted to Wadham College, Oxford University arriving there in September 1960. He attended lectures and started reading books in all those subjects. His Wadham law tutor, Mr. P.B. Carter, called David to his office and invited him to work under the supervision of a tutor.
As he was enjoying attending the lectures of H.L.A. Hart, Oxford's Professor of Jurisprudence, he approached him after a lecture and asked him if he would be his tutor. They discussed the subjects that David wanted to study, and Hart agreed! They met weekly for the 1960-61 academic year and talked about many subjects.
The first year over, Hart had to tell David that he only worked with graduate students. But he tested David's graduate potential by assigning to him the task of reading and critiquing his new book The Concept of Law in proof form. Hart thought David's critique made important points that they should continue discussing during the university year and declared that David was now a graduate student and that he should write a thesis for the D.Phil. degree.
They met for a second year, continuing some of the discussions left over from the prior year, touching upon many of the issues in The Concept of Law and developing the ideas that became part of David's doctoral thesis. David finished the thesis after the second year with Hart and received the D.Phil. degree after the oral defense of his thesis in April 1963.
Following completion of his D. Phil, David served as a law clerk for a Court of Common Pleas judge for one year. After that, he spent a year at the Universidad Nacional Autonoma de Mexico studying with Professor Luis Recasens Siches. He then served for another 12 months as a second clerkship with the judges of the Court of Common Pleas of Bucks County. In 1964, David began practicing law in Doylestown, Pennsylvania.
1967 to 1972, David taught political science at Rider College. During the following three years, he taught jurisprudence as an adjunct professor at Villanova Law School.
DAVID WROTE HIS FIRST BOOK Exclusionary ZoningLitigation in 1976. In 2017, he authored a second book Finding the Genetic Cause and Therapy for ADHD, Autism and 22Q which details the discovery of a genetic cause and drug therapy for ADHD, autism and 22q, which will allow patients to control their symptoms for these three diseases.