Legal Positivism in American Jurisprudence

by Anthony J. Sebok

• ISBN13: 9780521480413
• ISBN10: 0521480418
• Format: Hardcover
• Copyright: 1998-10-28
• Publisher: Cambridge University Press

Summary

This book represents a serious and philosophically sophisticated guide to modern American legal theory, demonstrating that legal positivism has been a misunderstood and underappreciated perspective through most of twentieth-century American legal thought. Anthony Sebok traces the roots of positivism through the first half of the twentieth century, and 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. The broad scope of this book ensures that it will be read by philosophers of law, historians of law, historians of American intellectual life, and those in political science concerned with public law and administration.

Table of Contents

Acknowledgments	xi
Why Study Legal Positivism?	1	(19)
Legal Positivism's Checkered Past	1	(6)
Sympathy for the Devil: Legal Positivism and Creon	7	(13)
Positivism and Formalism	20	(28)
Classical Legal Positivism and Classical Common Law Theory	20	(12)
Classical Legal Positivism and Sociological Positivism	32	(7)
Classical Legal Positivism and Legal Formalism	39	(9)
The Varieties of Formalism	48	(65)
Does Legal Formalism Exist?	48	(9)
Formalism and Antiformalism	57	(3)
Holmes and Antiformalism	60	(15)
Antiformalism and the Growth of Legal Realism	75	(8)
The Antiformalist Critique of Langdell and Beale	83	(21)
Conclusion	104	(9)
Legal Process and the Shadow of Positivism	113	(66)
The Reevaluation of Realism	113	(7)
The Development of Reasoned Elaboration	120	(9)
The Jurisprudential Foundations of Legal Process	129	(9)
Reasoned Elaboration as Noncontinuous Discussion	138	(5)
The Valorization of Adjudication	143	(17)
How Could Hart and Sacks Have Agreed with Fuller?	160	(9)
Institutional Settlement and Pluralism	169	(7)
Conclusion	176	(3)
The False Choice Between the Warren Court and Legal Process	179	(38)
Wechsler and Neutral Principles	179	(4)
Critical Reaction to Neutral Principles	183	(16)
Saving Legal Process from Its Friends	199	(7)
The Rise of Fundamental Rights	206	(11)
Fundamental Rights and the Problem of Insatiability	217	(50)
A Working Definition of Fundamental Rights	217	(5)
The Fundamental Rights Approach and Natural Law	222	(12)
The Strange Fate of Weak Epistemic Natural Law	234	(22)
Does the Fundamental Rights Theorist Have an Epistemic Theory of Law?	256	(3)
The Insatiability of Justice and Monistic Practical Reason	259	(6)
Conclusion	265	(2)
New Legal Positivism and the Incorporation of Morality	267	(52)
The Emergence of New Legal Positivism	267	(2)
From Rules to Principles: Hart, Dworkin, and the Defense of Hart	269	(8)
Nonincorporationism	277	(10)
Incorporationism	287	(7)
Incorporationism and the Problem of Insatiability	294	(13)
Incorporationism and Identification	307	(5)
Conclusion	312	(7)
Index	319