Positivism, emergent and triumphant.

• Date: 01 May 1999
• Author: Wellman, Vincent A.

LEGAL POSITIVISM IN AMERICAN JURISPRUDENCE. By Anthony Sebok. New York: Cambridge University Press. 1998. Pp. xiv, 327. $59.95.

"Positivism" is one of those words that triggers passionate and often contradictory responses. For some, positivism is a pejorative.(1) Lon Fuller, perhaps more than anyone, charged that positivism was confused about the nature of law, blind to law's inherent morality, and morally corrupting to boot.(2) He even suggested, in different ways, that positivism helped promote the rise of fascism in Europe.(3) Others, in contrast, have treated positivism as a modest and undeniable truth about law. Law, they argued, is morally fallible, and accordingly, the existence and validity of law is a matter of social fact rather than moral necessity. H.L.A. Hart, in particular, offered this perspective.(4) Building on the arguments of Austin and Bentham, his British predecessors, he characterized positivism in ways that took it less as a theory of law by itself than as a starting point for developing a satisfactory theory.(5) Attributing to positivism anything more substantial than this, Hart suggested, would risk both misperceptions about law's nature and also confusions about our political and legal obligations.(6)

In terms that are important for appreciating Anthony Sebok's(7) enterprise, those who have followed Hart's lead take positivism to offer only a "thin" theory.(8) That is, positivism involves little more than the apparently simple claim that there is no necessary or logical connection between law and morality.(9) This claim, now standardly called the separability thesis,(10) does not by itself entail any particular position about the nature of law or about the nature of judicial decisionmaking.(11) Theories about those topics need to be developed, on this approach to positivism, in order to complete our understanding of the nature of law; the separability thesis means only that it cannot be a precondition for the adequacy of such theories that law, or legal rules, must always be moral. Fuller's denigration of positivism, on the other hand, assumed that positivism is a "thick" theory, entailing deep but profoundly mistaken views about the nature of law and adjudication and the fundamental morality of both.(12) This thick theory of positivism should be rejected, Fuller maintained, because its concomitant positions on the nature of law and adjudication are both wrong and pernicious.

Anthony Sebok rejects both these perspectives, at least as regards positivism as it has been found in American legal theory of the last century. Fuller was wrong, Sebok maintains (pp. 46-47, 160-69), because he conflated positivism's core tenets with some of the mistaken ideas of Austin and Hobbes. But, Sebok argues (pp. 18-19), positivism is thicker than H.L.A. Hart's successors have acknowledged. Properly understood, it involves a complex set of commitments, especially as concerns the nature of judicial decisionmaking. Thus, Sebok's argument proceeds on two levels. One involves an argument (pp. 6, 18-19, 267-317) for what is now called incorporationism, or sometimes inclusivist positivism.(13) This is an inquiry in philosophy of law, advancing incorporationism as against both natural law and also a competing brand of positivism that is usually termed exclusivism, or nonincorporationism. At the other level, Sebok is developing a thesis of intellectual history, interpreting the twists and turns of twentieth-century American jurisprudence in ways that are fresh and challenging. His focus at this second level is also called "positivism," but in this context what he means is better understood as a theory of adjudication rather than a claim about philosophy of law. In particular, Sebok aims to rehabilitate the theory of adjudication which was propounded by Henry Hart and Albert Sacks in their influential manuscript from the 1950s, The Legal Process.(14) As Sebok views it, Hart and Sacks's theory is underappreciated today because, soon after it emerged, it was usurped by conservative critics of the Warren Court, who used it to advance a political agenda that is alien to the Legal Process theory of adjudication.(15)

What links these two levels of argument is a claim about the goals, and virtues, of positivism: positivist theories, according to Sebok, seek to develop a theory of law that both accommodates and controls judicial discretion.(16) The contribution of Hart and Sacks to this project is to offer a theory of adjudication that incorporates principles (some of them moral) as part of a complex mechanism for controlling judicial discretion. The contribution of incorporationism is to show that it is possible, consistent with legal positivism's basic tenets, to include moral principles in a theory of adjudication without falling into some kind of natural law position. The result is a rich and complex exploration of the development, in twentieth-century American legal theory, of the theory (or theories) called positivism. By my lights, Sebok is more successful in his argument about intellectual history and especially the hijacking of Hart and Sacks, than in his argument to connect these developments with the incorporationism debate in philosophy of law. But, at every level, this is an admirable piece of work, rich in detail and elegant in its design. Legal Positivism in American Jurisprudence is a book that I will long remember and draw from in my own thinking about these issues.

THE TRIUMPH OF INCORPORATIONISM

It is useful to begin with the argument about positivism's philosophical commitments, although I regard this as the less impressive part of Sebok's enterprise. For some time, philosophy of law has tended to regard natural law and legal positivism as opposed and incompatible philosophical approaches to law.(17) Along these lines, many positivists distinguish their approach from that of natural law by reference to the separability thesis: to accept that thesis means that positivism denies, but natural law affirms, that there is some necessary, or logical, connection between law and morality. Positivism, on this formulation, allows that some (even most) legal systems might exhibit a connection with morality, because of some fact of, say, the history of those legal systems or perhaps of their particular constitution. But law and morality are still importantly distinct, so that there could well be laws or legal systems, properly so called, which are morally deficient.

While the core idea of the separability thesis can be found in H.L.A. Hart's seminal 1958 essay, Positivism and the Separation of Law and Morals,(18) both the term "separability thesis" and the idea's centrality to positivism owe to Jules Coleman's important essay in 1982, Negative and Positive Positivism.(19) Coleman's understanding of positivism allows that moral principles might be part of the law of some legal system, and it is this version of positivism that Sebok aims to defend. The alternative view, based on the views of Joseph Raz, rejects the idea that moral principles can be properly part of the legal system and hence is called "nonincorporationism," or "exclusivism."(20) On Raz's view, moral principles can be factors in certain judicial decisions but not part of the law.

The status of moral principles has been a recurring problem for positivism. The most forceful and elegant arguments about such principles have been advanced by Ronald Dworkin in a series of essays challenging positivism.(21) When deciding "hard" cases, argued Dworkin, judges characteristically make use of norms that appear both to be legal, in some important sense, and also to have significant moral content.(22) Dworkin, for example, has made much of the case of Riggs v. Palmer,(23) in which the New York Court of Appeals upheld a challenge to an otherwise valid will on the grounds that the will's main beneficiary had murdered the testator to prevent him from changing the will. In its decision, the court relied on what it called a "maxim" of the common law, "no one shall be permitted ... to take advantage of his own wrong,"(24) as grounds for allowing the challenge to the murderer's claim. What the court called a maxim, Dworkin called a principle, but his fundamental claim was of course substantive rather than terminological. The law, he argued, is well-stocked with such principles, and while they express fundamental moral claims, they are also an important component of the reasoning by judges in cases that establish rights and liabilities.(25) Thus, on the one hand they are moral principles and yet on the other hand they also appear to be legal -- they are principles of law, in some nontrivial sense of that word. Thus, Dworkin argued, such principles challenge positivism, at least as along the lines suggested by Austin and H.L.A. Hart.

In responding to this challenge, positivists have split into two camps, each camp offering a different solution to the problem of principles. The exclusivist position owes principally, as I have said, to Joseph Raz. On Raz's view, while moral principles can play an important role in judicial decisions, they do not really become part of the legal system. Their role, as Raz sees it, is that of an outsider, an alien presence. Principles are used or borrowed by the deciding court, just as a Michigan court would use or borrow the law of California in order to decide a controversy where the applicable "conflicts" rules of decision conclude that the dispute is governed by the law of California:

Suppose that the law requires that unregulated disputes (i.e. those with respect to which the law is unsettled) be determined on the basis of moral considerations (or a certain subclass of them, such as considerations of justice or moral considerations not fundamentally at odds with social morality).... To conform to [exclusivism] we will have to say that while the rule referring to morality is indeed law (it is determined by its sources) the...