Legal Positivism in American Jurisprudence
Cambridge University Press, November 1998
Posted: 3 Dec 1999
Abstract
This book is both a work of intellectual history and a contribution to legal philosophy. It argues that legal positivism has been a misunderstood and under-appreciated perspective throughout most of Twentieth-Century American legal thought. Its central claim is that positivism is a theory of law that limits the theories of adjudication available to judges who accept it, and it uses the history of American legal theory to illustrate this claim. The book concludes by arguing that positivism's constraints are broader than many of its critics have claimed, in that modern legal positivism explains how judges can incorporate moral concepts into legal reasoning without collapsing into some form of natural law.
The book argues that Austinian positivism found expression in the United States through the writings of Langdell and Beale, and that realism, rather than being a form of positivism, as Lon Fuller had argued, was a critique of classical positivism. The argument is then carried forward to the rise of legal process, which is seen as both anti-realist and positivist. By focusing on the phenomenon of discretion, legal process addressed aspects of law that formalism had ignored. The book argues that positivism, in its legal process instantiation, was "hijacked" during the Warren Court by conservative legal scholars who were moral skeptics, and this created the impression that positivism was necessarily hostile to moral principles in the law. Legal process, it is argued, represented an alternative approach that could have attracted many of the same people who were attracted to the "fundamental rights" movement of the '60's and '70's. The idea that legal positivism can address the role of morality in law is examined and defended in the book's final chapter.
The author rejects the view that one must adopt some version of natural law theory in order to recognize moral principles in the law. On the contrary, once one corrects for the mistakes of formalism and postwar legal process, one is left with a theory of legal positivism that takes moral principles seriously while avoiding the pitfalls of natural law.
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