University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 1999 Positivism, Formalism, Realism Brian Leiter Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Brian Leiter, "Positivism, Formalism, Realism ," 99 Columbia Law Review [v] (1999). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. REVIEW ESSAY POSITIVISM, FORMALISM, REALISM LEGAL POSITIVISM IN AMERICAN JURISPRUDENCE. By Anthony Sebok.* New York: Cambridge University Press, 1998. Pp. 327. $59.95. Reviewed by Brian Leiter" In Legal Positivism in American Jurisprudence, Anthony Sebok traces the historical and philosophical relationship between legal positivism and the dominant schools of American jurisprudence: Formalism, Realism, Legal Process, and FundamentalRights. Sebok argues that formalism fol- lowed from the central tenets of ClassicalPositivism, and that both schools of thought were discredited-throughmisunderstandings-during the Realist period. Positivism'sessential tenets were reassertedby Legal Process scholars, though soon thereafter misappropriatedby politically conservative theorists. In the concluding chapters of the book, Sebok argues that the recent theory known as "Soft" Positivism or "Incorporationism" holds out the possibility of redeeming the liberalpolitical credentials of positivism. In this Review Essay, ProfessorLeiter questions Sebok's jurisprudential analysis. In PartI, Leiter sets forth the central tenets ofpositivism, formal- ism, and realism. In PartII, he critiques each step in Sebok's jurispruden- tial argument. He shows thatformalism has no conceptual connection with positivism, while realism is essentially predicatedon a positivist conception of law. Moreover, Leiterfinds that Legal Process has far greateraffinities with Ronald Dworkin's jurisprudence than with positivism. Finally, Soft Positivism cannot redeem positivism's liberal credentials because positivism does not entail any political commitments in adjudication. Leiter concludes by questioning Sebok's acceptance of the correctness of Soft Positivism as a theory of law. INTRODUCTION Anthony Sebok's book tells the following striking story about the re- ception of legal positivism in American legal, thought over the last hun- dred years. Although the term "positivism" did not figure significantly in academic discourse until the second quarter of this century (p. 32), "Classical Positivism" (the doctrine of Austin and Bentham) was the tar- * Associate Professor of Law, Brooklyn Law School. ** Joe A. Worsham Centennial Professor in Law, Professor of Philosophy, and Director of the Law & Philosophy Program, The University of Texas at Austin; Visiting Professor, Yale Law School, 1998-99. 1 am grateful to Michael Durham for research assistance, and to Mr. Durham, Randall Sommer, and, especially, Scott Shapiro for comments on the penultimate draft. This Review Essay is dedicated to the memory of my cherished and devoted friend, Milton Handler (1903-1998). 1138 HeinOnline -- 99 Colum. L. Rev. 1138 1999 1999] POSITIISM, FORMALSM, REALISM 1139 get of various writers from the late nineteenth century onwards under labels such as "formalism" and "analytic jurisprudence" (pp. 41-47).' In- deed, Sebok claims, "[f]ormalism [rightly understood] ... was a form of positivism" (p. 108). The Legal Realists of the 1920s and later, for exam- ple, were opponents of positivism, even though they didn't attack it under that name (pp. 3, 114). The anti-Realist reaction after World War II, reflected in the rise of the Legal Process school, was in fact predicated on an acceptance of the basic tenets of Classical Positivism (pp. 128, 159). Unfortunately, this revival of the insights of legal positivism was "hi- jacked" through the conservative appropriation of Legal Process by con- stitutional scholars like Alexander Bickel and Robert Bork (pp. 187-95).2 The result was that positivism was henceforth unfairly viewed as an inher- ently conservative position (p. 179). Recent "Inclusive" or "Soft" versions of legal positivism, however, demonstrate why positivism is not an inher- ently conservative doctrine, and how positivists can accord due respect to the (constrained) role of moral considerations in adjudication (p. 316). Sebok tells his story well and with copious documentation. In its his- torical dimensions, the book is often highly illuminating. Sebok does, indeed, show how the label "positivist" "has become a pejorative in mod- em American legal circles" (p. 2). He reveals the rather fiightful misun- derstandings of positivism that a host of twentieth-century thinkers- from Morris Cohen to Lon Fuller-latched onto and then ascribed (wrongly) to legal positivists like Austin, Bentham, and Hart (pp. 20, 39). At the same time, Sebok saves "formalists" like Langdell and Beale from some of the worst caricatures they suffered at the hands of their many critics (pp. 83-104). On all these counts, his historical research is thor- ough and his interpretive points are convincing. But ultimately Sebok's book turns on a jurisprudential argument, and here he is less successful. Indeed, Sebok introduces new confusions about and misunderstandings of positivism to replace those he so ably disposes of in earlier chapters. In particular, I will argue, against Sebok, that (1) positivism, as a theory of law, has no conceptual connection with formalism; (2) Legal Realism was tacitly committed to positivism as a the- ory of law; (3) Legal Process was not predicated on an essentially positivis- 1. Although much of Sebok's discussion until late in the book concerns "Classical Positivism," it is worth noting that of the three theses Sebok attributes to Classical Positivism, only one (what Sebok calls the "command theory of law" (p. 31)) is rejected by contemporary positivists. Since the book's ambitions are ultimately jurisprudential, rather than historical, I confine most of my attention to positivism, simpliciter, and bracket questions about the accuracy of Sebok's historical account. Where something significant turns on a difference between Classical and contemporary positivism, I note that point either in the text or in the footnotes. 2. The vehicle for this transformation was Herbert Wechsler's seminal essay-see Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959). Because the conservatives were "skeptical about the objective existence of moral concepts," they took the demand for neutral principles to require that all constitutional interpretation be grounded in original intent (p. 188). HeinOnline -- 99 Colum. L. Rev. 1139 1999 1140 COLUMBIA LAW REVIEW [Vol. 99:1138 tic theory of law; and (4) positivism is not inherently "conservative" or "liberal"-though its proponents have generally been motivated by re- formist and radical political goals-and thus, as a consequence, Soft Positivism does not redeem the (liberal) political credentials of positivism. I proceed as follows. In the spirit of Sebok's welcome project of try- ing to introduce greater clarity and consistency to our use of theoretical labels, I begin by setting out what I take to be the core theoretical com- mitments of "Positivism," "Formalism," and "Realism" (confining largely to the footnotes discussion of where I think Sebok goes wrong in his own presentation of these schools and movements). I then turn to the four points enumerated above, to illustrate in some detail where Sebok's su- perficially attractive narrative fails as jurisprudential argument. I. THREE ISMS A. Positivism Positivism is a theory of law, i.e., about the nature of law. Such a theory aims to explain certain familiar features of societies in which law exists, and it proposes to do so by analyzing the "concept" of law. Conceptual analysis, of course, is not a mere exercise in lexicography.3 As H.LA Hart observed: "[T]he suggestion that inquiries into the meanings of words merely throw light on words is false."4 Rather, Hart endorsed J.L. Austin's view that "a sharpened awareness of words . .sharpen[s] our perception of the phenomena."5 Thus, although Hart employs the method of conceptual analysis, he calls his project one of "descriptive soci- ology."6 As Joseph Raz puts it: "[W]e do not want to be slaves of words. Our aim is to understand society and its institutions."7 Conceptual analy- sis is simply the primary tool that the Hartian Positivist employs to this end.8 8. Though it seems more than a little misleading to say, as Leslie Green does in his otherwise illuminating review, that Hart's "book is not an exercise in linguistic philosophy." Leslie Green, The Concept of Law Revisited, 94 Mich. L. Rev. 1687, 1688 n.1 (1996). 4. H.LA Hart, The Concept of Law, at v (Penelope A. Bulloch &Joseph Raz eds., 2d ed. 1994). 5. Id. at 14. 6. Id. at v. 7. Joseph Raz, Legal Positivism and the Sources of Law, in The Authority of Law 37, 41 (1979) [hereinafter Raz, Legal Positivism]. For more on this theme, see Raz's contribution to the recent symposium on Hart's Postscript: Two Views of the Nature of the Theory of Law: A Partial Comparison, 4 Legal Theory 249, 254-58 (1998). 8. Thus, Sebok is plainly mistaken when he writes that positivism "grounds the definition of law on the analytical separability of law and morality" (p. 7). This is misleading on two scores. First, positivists are not interested in defining law. They want to understand the concept of law, and while the word "law" and how it is used has evidentiary value as to the content of the concept, the positivist enterprise does not involve definition. Second, Sebok's formulation makes it sound as though the Separability Thesis, see infra text accompanying note 11, is sufficient for positivism, whereas it is equally central to HeinOnline -- 99 Colum. L. Rev. 1140 1999 1999] POSITIVISM, FORMALISM, REALISM 1141 Which features of the concept of law require explanation for the pos- itivist? Two are particularly important.