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99 Colum. L. Rev. 1138 (1999)
Positivism, Formalism, Realism

handle is hein.journals/clr99 and id is 1176 raw text is: 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 Fundamental Rights. Sebok argues that formalism fol- lowed from the central tenets of Classical Positivism, and that both schools of thought were discredited-through misunderstandings-during the Realist period. Positivism's essential tenets were reasserted by Legal Process scholars, though soon thereafter misappropriated by 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 liberal political credentials of positivism. In this Review Essay, Professor Leiter questions Sebok's jurisprudential analysis. In Part I, Leiter sets forth the central tenets of positivism, formal- ism, and realism. In Part II, he critiques each step in Sebok's jurispruden- tial argument. He shows that formalism has no conceptual connection with positivism, while realism is essentially predicated on a positivist conception of law. Moreover, Leiter finds that Legal Process has far greater affinities 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