The Judge and the Umpire

<p><span style=color: rgba(0 0 0 1)>This book is the first of four volumes published under the series title </span><em style=color: rgba(0 0 0 1)>The Judge and the Creative Positivist</em><span style=color: rgba(0 0 0 1)>. </span><em style=color: rgba(0 0 0 1)>Creative positivism</em><span style=color: rgba(0 0 0 1)> is a legal philosophy that is an extension of H.L.A. Hart's legal positivist theory presented in his classic work </span><em style=color: rgba(0 0 0 1)>The Concept of Law</em><span style=color: rgba(0 0 0 1)>. 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 </span><em style=color: rgba(0 0 0 1)>The Concept of Law</em><span style=color: rgba(0 0 0 1)> 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 </span><em style=color: rgba(0 0 0 1)>tertiary rules</em><span style=color: rgba(0 0 0 1)>.</span></p><p><br></p><p><em style=color: rgba(0 0 0 1)>The Judge and the Umpire </em><span style=color: rgba(0 0 0 1)>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 </span><em style=color: rgba(0 0 0 1)>not</em><span style=color: rgba(0 0 0 1)> like umpires who call balls and strikes with no authority to change the rules.</span></p><p><br></p><p><span style=color: rgba(0 0 0 1)>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.</span></p><p><br></p><p><span style=color: rgba(0 0 0 1)>www.thecreativepositivist.com</span></p><p><br></p><p><span style=color: rgba(0 0 0 1)>Published by www.hugejam.com 2022</span></p>