The Invisible Foundations of Originalism

Legal scholars have made many efforts to compare non-originalist models of constitutional adjudication with non-positivistic models of legal orders. Surprisingly, the opposite holds true for the relation between originalism and positivism; their relation and, indeed, their complementarity remain, to this day, largely unexplored. Although originalism and positivism have been the dominant models in the US and in Europe, they have never been an object of comprehensive comparison. This essay aspires to fill, in part, that gap. Focusing on methodological issues, on the one hand, I will suggest that, in principle, originalism and positivism overlap and, to a very considerable extent, might complement each other. On the other, I will argue that, whereas many originalists are inclined to endorse legal positivism at the justificatory level, the new versions of legal positivism defended by Raz, Marmor, and Shapiro reject originalism.