Misunderstanding positivism.

• Author: Sebok, Anthony J.
• Position: Legal positivism

If they can get you asking the wrong questions, they don't have to worry about the answers.

--Thomas Pynchon(1)

INTRODUCTION: AMERICA'S LOVE-HATE RELATIONSHIP WITH LEGAL POSITIVISM

The past forty years have not been kind to legal positivism. Ever sinCe H.L.A. Hart's famous debate with Lon Fuller over the charge that German legal positivists were partly responsible for the rise of Hitler, poSitivism has been the target of frequent attacks by American lawyers.(2) Its critiCs have tried, at various times, to connect positivism with a diverse and jointly inconsistent group of theories, such as legal formalism,(3) legal realism,(4) and originalism.(5) Furthermore, since the 1960s, legal positivism has been associated almost entirely with politically conservative forces in this country, especially with an approach to constitutional interpretation known during the 1970s as "judicial restraint."(6) Given the various contexts in which the term positivist has been used, it is clear that in recent years the term has become a pejorative in modern American legal circles.(7)

Legal positivism's critics have also noted that positivism is so pervasive in American legal culture that at various times it has been the dominant jurisprudence of America. Thus, in 1976, Ronald Dworkin called positivism the "ruling theory of law" in America and England.(8) Looking into our past, Robert Cover characterized positivism as the major jurisprudence of post-Revolutionary America and attributed the failure of Northern judges to subvert the proslavery aims of the Fugitive Slave Acts to the influence of positivism on the antebellum legal mind.(9)

As H.L.A. Hart noted in his debate with Fuller, the assumption that positivism is somehow inherently conservative is a peculiarly American attitude.(10) Furthermore, the immediate identification of positivism with the nation's "dominant" legal theory means that liberals who wish to reform or challenge the status quo begin with the presumption that their analysis must reject legal positivism.(11) In this article I will attempt to demonstrate that the association of positivism with conservatism reflects a response in America to a particular version of positivism and that for various historical reasons, only the narrow version of positivism was fully developed on this side of the Atlantic. I do not imagine that my argument, which simply proves that positivism does not have to be conservative, proves the converse, that positivism must support a liberal approach to the Constitution. The relationship between legal positivism and progressive constitutionalism is a separate argument that this article makes possible.(12)

This article sets out a historical account of the evolution of legal positivism in American jurisprudence. Although scholars today treat legal positivism as a major--if not the major--jurisprudence in America, no such theory was discussed by name in legal literature before the late 1920s. Part I argues that although legal positivism did not properly emerge as a major theory of law in America until Fuller's attack in 1940, positivism had been playing a major role in shaping American jurisprudence since the late nineteenth century. The fact that the term "legal positivism" was rarely used before 1940, and probably never used before 1927, does not mean that the theoretical content of legal positivism was absent from legal discourse before that date. The foundational principles of nineteenth-century positivism--what I will call "classical positivism"--were represented in jurisprudential debates in America under a variety of different names. Two other historical schools of jurisprudence provided the "aliases" that concealed classical positivism's influence: formalism and "analytic jurisprudence."

This article will reevaluate the relationship between classical positivism and formalism. For while it has been a popular truism that formalism embraced the separation of law and morality through "mechanical jurisprudence,"(13) it has also become equally popular to attribute to formalism a commitment to supranatural principles of law that exist independent of human authority.(14) This latter position is inconsistent with the "sources thesis" of classical positivism and commits formalism to a form of natural law theory similar to Blackstone's.(15) American formalism may have been guilty of many sins, but natural law is not one of them.

Part II argues that the attack on formalism by legal realism reveals to us how classical positivism was defined and distorted in early twentieth-century American legal scholarship. Despite--or perhaps because of--the fact that classical positivism completely agreed with realism that law and morality were analytically separable, the realists focused their attention entirely on formalism's theory of legal reasoning. According to the realists, the formalists believed that every legal conclusion could be logically deduced from a set of authoritative rules. This view of legal reasoning--if it indeed was ever embraced by American formalists--would have been an unwarranted reinterpretation of the sources thesis of classical positivism, which merely said that every valid legal command was the result of a command of the sovereign.

By 1930--before legal positivism was discussed by name--the rough outlines of American positivism had been set by the debate between realism and formalism. The degree to which this picture of positivism was entrenched in American jurisprudence can be best illustrated by the rejection of the reconstituted form of positivism known as legal process. Part III shows that, in response to the realists, attack, American positivists modified two of the main elements of classical positivism, the command theory of law and the sources thesis, so as to rebut the charges against formalism.(16) To this end, in the 1950s a younger generation of constitutional law scholars-themselves weaned on realism--attempted to reevaluate the force of realism's attack on legal rules. They readily conceded that law could not be a deductive or mechanical system of rules but noted further that realism's solution--skepticism about whether rules can constrain at all--was itself an extreme view. Classical positivism, which had been described by the realists to include the unreal assumption that legal rules could form a deductive system, was ultimately reinterpreted by the legal process school so that its model of legal reasoning embraced the elements of classical positivism but rejected mechanical jurisprudence.

One goal of Part III is to explain why legal process did not flourish after it appeared as an alternative to realism. On the one hand, the legal process school represented a fundamental rejection of mechanical jurisprudence, while on the other hand, contingent historical reasons led the legal process school to saddle itself with a variety of other liabilities. There were two distinct movements within the legal process school. The first, defined by Hart and Sacks's The Legal Process,(17) laid the foundation for the kind of positivism I think is defensible and is not an obvious ally of political consenatism. The second, defined by Herbert Wechsler, Alexander Bickel, and Robert Bork, came later and twisted Hart and Sacks's theory of law into a conservative theory of adjudication. The later legal process scholars, interpretation of Hart and Sacks relied on a controversial form of moral skepticism that assumed that legal norms cannot command judges to enforce moral principles because moral principles did not have any cognizable existence. Nothing in Austinian positivism requires such a crabbed interpretation of legal rules.

American positivism has gone through at least three major transformations. In the first transformation, classical positivism was turned into an absurd form of formalism, in which the realists claimed that Austin's command theory of law necessarily implied a belief in law as a deductive system. In the second transformation, legal process stripped mechanical jurisprudence from positivism. As soon as the second transformation was complete, the third transformation occurred, in which politically conservative legal process theorists argued that the sources thesis and the model of rules necessarily implied a theory of original intent. It is telling that throughout the past century American positivism has been put into the service of conservatism because of the desire of both its enemies and allies to add unnecessary and implausible elements to classical positivism.

It is important that I point out the limited purposes of this article. I cannot, in the context of the argument I make, prove that positivism will not inevitably collapse into a conservative theory of law. Nor can I prove that positivism is not vulnerable to jurisprudential arguments unrelated to the attempt to link positivism with formalism, legal process, and originalism. I recognize that strong arguments have been made that modern positivism's attempts to divorce itself from classical positivism's command theory of law has opened up more problems than it has solved.(18) I have certain views on whether that divorce is possible and the form it should take, but this is not the place to raise them.(19) My single goal in this article is to disprove a set of bad arguments against positivism, which, in my opinion, have given it a peculiarly conservative profile and have distracted us from investigating alternative versions.

1. LEGAL POSITIVISM AND LEGAL FORMALISM

   The best place to begin any discussion of legal positivism and American jurisprudence is 1940, which is when Lon Fuller accused legal realism of being merely a subspecies of positivism. Fuller thought that legal realism and legal positivism were part of the same jurisprudential family tree. He thought that legal realism was a modern American modification to the legal positivism of Jeremy Bentham and John Austin:

   We may say of modern positivistic...