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Published online by Cambridge University Press: 13 April 2010
Norm and Nature: The Movements of Legal Thought, by Roger Shiner, is an intricate book with the perhaps surprising thesis that the outstanding problem in legal philosophy, the conflict between positivism and natural law, is irresolvable. The controversy is doomed to a never-ending cycle because “sophisticated positivism follows from positivism's difficulties with simple positivism … anti-positivism follows from sophisticated positivism's difficulties with simple positivism; [and] simple positivism follows from positivism's difficulties with anti-positivism” (p. 281). For legal theory, then, an understanding of law is simply an understanding of why legal theory is thus “condemned to endless dialectic” (p. 324). And the reason is found in the nature of law itself and the perennial tension between, on the one hand, certainty and procedure and, on the other, flexibility and substance.
1 Shiner's arguments on these matters are considerably more intricate than represented here.
2 Shiner later discusses compatibilism, attributed especially to Dworkin, as a possible “third theory” of law capturing the strengths of positivism and antipositivism. Though he agrees that a good judge gives due weight both to settled law and to appropriate moral considerations, nevertheless Shiner insists on characterizations of positivism and anti-positivism that are mutually exclusive and exhaustive, thus precluding at the level of theory any so-called third theory of law.