"Creative positivism is a legal philosophy that is an extension of the legal positivist theory presented by H.L.A. Hart in his classic work The Concept of Law. Creative positivism expands Hart’s rule of recognition to encompass various situations that do not fit easily into Hart’s description. It modifies Hart’s version of the discretionary theory because Hart limits the exercise of discretion in making judicial decisions to his version of “hard cases.” These are cases in which there are gaps, open texture or penumbral factual situations as distinct from core factual situations. Creative positivism demonstrates that discretion is also exercised in the easy cases in which the law is determinate. Finally, creative positivism adds to Hart’s primary rules and secondary rules a third type of rules called tertiary rules.

"The changes to Hart’s legal philosophy outlined above are presented in a quartet of books called The Judge and the Creative Positivist. In the first book, The Judge and the Umpire, six cases are presented that demonstrate that judges sometimes exercise discretion in easy cases (cases in which the law is certain). Judges may make correct decisions, which are decisions that are made by applying legal rules that are part of the pre-existing law (the law that existed before the case was decided) without modifying in a material way the legal rule being applied. Using this definition of the correct decision, judges not only make correct decisions but also make decisions that are not correct (I call them “incorrect decisions” which are all decisions that do not qualify as correct decisions).

"There are two types of incorrect decisions. The first type occurs when the judge believes that she is applying a legal rule that existed before the case was decided but her version of the legal rule is a mistake. The second type of incorrect decision is when the judge decides the case by applying a new legal rule by expanding, contracting, otherwise modifying the legal rule of the pre-existing law or creating an entirely new legal rule. The theory that judges do not make new legal rules but only apply rules of the pre-existing law is called the traditional theory. In short, because judges are authorized to create new legal rules, they are not like umpires who call balls and strikes and have no authority to change the rules.

"In The Judge and the Philosopher, the second book, I describe Hart’s legal philosophy. My focus is on his version of the discretionary theory. I use the six cases mentioned previously to establish that judges exercise discretion in cases that Hart does not believe that discretion is exercised (the easy cases). I maintain that judges may look to alternate sources, such as the desire to make the just decision or the wise decision, in order to create new legal rules.

"In the third book, The Judge and the President, I expand the alternate sources to include what Hart called permissive sources. An example, and I present several others, would be applying “legal rules” that are mentioned in concurring or dissenting opinions. While Hart accepts that customary rules may be legal rules, he does not distinguish customary rules with the force of law from customary rules that lack the force of law. I use the election of the U.S. President in 2020 to demonstrate the difference between the two types of customary rules. Members of the Electoral College violate a customary rule that lacks the force of law when they vote for a candidate who did not win the popular election in the state in which they have been elected (they are called “faithless electors”). I contend that, if there are enough faithless electors who vote for a candidate who did not win the popular vote in their state, so that the candidate who should have been elected does not become the president, this would violate a customary rule with the force of law.

"The last book in the quartet is called The Judge and the Incorrect Decision. While someone may believe that Roe v. Wade (the decision declaring that abortion is legal) would qualify as an incorrect decision, I maintain that it cannot be overruled because it is an incorrect decision. Both correct decisions and incorrect decisions create legal rules, and the decisions are authorized, authoritative and binding. The U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade because it is an incorrect decision. To overrule a decision because it is an incorrect decision demonstrates a misunderstanding of the customary rules that are part of the legal system and the legal culture. It is a return to the traditional theory that judges are like umpires.
 
"I reconstruct Hart’s rule of recognition to expand it to include additional situations that are not contrary to Hart’s version but are not clearly included within it. I also provide in the fourth book the tertiary rules, which is a set of rules that are not primary or secondary rules. For example, tertiary rules would include acknowledging that judges may make just decisions and wise decisions in addition to correct decisions.

"I present the foundation for creative positivism and the principles of creative positivism in The Judge and the Incorrect Decision. Accepting that judges make incorrect decisions, as I have defined them, and that these incorrect decisions make new legal rules is the central theme of creative positivism."