Columbia Law Review
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 followed 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, formalism, and realism. In Part II, he critiques each step in Sebok's jurisprudential 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.
Brian Leiter, "Positivism, Formalism, Realism ," 99 Columbia Law Review [v] (1999).