LEGAL POSITIVISM IN AMERICAN JURISPRUDENCE by Anthony J. Sebok. Cambridge, UK and New York: Cambridge University Press, 1998. 327 pp. Cloth $59.95. ISBN 0-521-48041-8.

Reviewed by Scott D. Gerber, Social Philosophy and Policy Center.

Most Law and Courts scholars were taught that legal positivism is hostile to moral principles in the law. I know I was. Anthony J. Sebok, a law professor at Brooklyn Law School, endeavors to debunk that proposition in LEGAL POSITIVISM IN AMERICAN JURISPRUDENCE, a recent contribution to the Cambridge Studies in Philosophy and Law. Sebok, who studied under Joseph Raz at Oxford, Walter Murphy at Princeton, and Jules Coleman at Yale Law School, plainly has mastered the often abstruse scholarship on legal positivism. The great challenge for him--at least if he hopes to reach a fairly broad audience--is to convey that mastery to the public law community at large.

To his credit, Sebok is well aware of the challenge he faces. He writes in a prefatory portion of his book: "I apologize in advance for the unusual structure of my historical argument. Not only am I not a professional historian, and therefore untrained in the difficult task of writing intellectual history, but the subject matter itself forced me to adopt an awkward expository style" (p. xiii).

Chapter 1 provides a much needed overview of the book. Chapter 2 examines the contrasts between John Austin and Jeremy Bentham, two of the early titans of legal positivism, and legal realism. Chapter 3 turns to the legal positivism of Christopher Langdell and Joseph Beale, who Sebok maintains brought the positivism of Austin and Bentham from England to the United States. Sebok suggests in the chapter that the realists misunderstood what the early American positivists were attempting to do: that the realists created a "straw man," so to speak, to further their own agenda of promoting rule and fact skepticism in the law. (Sebok's criticism of the realists also is in evidence in Chapter 2, and throughout the book.)

Chapter 4 explains how the legal process school arose in large measure as a counterattack against the skepticism of the legal realists. Chapter 5, which is the most interesting chapter in the book, continues the discussion and finds Sebok addressing why the legal process school did not enjoy the influence that perhaps it should have enjoyed. Henry Hart and Albert Sack's unpublished treatise THE LEGAL PROCESS--it finally was published in 1994, under the editorship of William Eskridge and Philip Frickey--is front and center in both chapters. (Henry Hart should not be confused with H.L.A. Hart, the author of THE CONCEPT OF LAW and the most significant legal positivist of the twentieth century.) Most notably, Sebok argues that legal positivism, in the guise of legal process, was "hijacked" during the Warren Court era by conservative legal scholars--Herbert Weschler, Alexander Bickel, and Robert Bork, in particular--who were moral skeptics, thus creating the still dominant impression that positivism is hostile to moral principles in the law.

Conservatives are not the only ones to blame for this misimpression, Sebok maintains. "[I]n their rush to avoid the moral skepticism of Weschler, Bork, and Bickel," he writes, "the liberal [fundamental rights] critics rejected an essential positivist tenet, the separation of law and morality, and ultimately, I argue, embraced a version of natural law" (p. 6). Chapter 6 thus finds Sebok declaring the fundamental rights project a failure, because of the "insatiable" nature of moral reasoning. Chapter 7 concludes the book with Sebok reviewing attempts by recent legal positivists--Coleman, Raz, Frederick Schauer, and ultimately Sebok himself--to devise a theory of positivism that can reinsert moral principles into the law without collapsing into natural law.

Sebok argues for what he calls a "New Legal Positivism," which he claims can "show us how reasoned elaboration of moral principles can occur without collapsing into the moral wasteland of neutral principles or the moral quicksand of fundamental rights" (p. 316). Talk about a provocative theory! Unfortunately, though, Sebok relegates the articulation of his New Legal Positivism to the final six pages of his 327 page book. Not only is his theory thereby buried in the intellectual history that precedes it, but it is not described in sufficient detail to allow the reader--or at least THIS reader--to decide whether it is plausible or not. Here, the fact that Sebok's book is apparently a revised version of his Ph.D. dissertation is most in evidence. As public law political scientists well know, the vast majority of Ph.D.dissertations include too much literature review and not enough original theorizing. Sebok's book suffers from this same problem.

Political scientists also might want to know that Sebok limits his literature review almost exclusively to the contributions of law professors. Sotirios Barber receives some attention in Sebok's discussion of fundamental rights theory, as do Sebok's teachers Raz and Murphy, but no one else really does. Moreover, Sebok does not discuss all the relevant law professors. Indeed, his book may be characterized as a recent example of the tendency of law professors to summarize the same few "famous" law professors' arguments and then explain why, in the author's opinion, their arguments are incorrect.

In conclusion, after reading Sebok's book I was left with the following question: When will academics stop believing that simply because someone is fortunate enough to teach at an elite institution, that what she or he has to say is necessarily the point of departure for the rest of the academy? In fact, the great strength of Sebok's book--albeit an unintended strength, no doubt--is the ease with which he is able to demonstrate that so many of the great names of American jurisprudence were wrong in what they tried to teach us. Who knows, perhaps Hart and Sacks refrained from publishing THE LEGAL PROCESS for a reason.

Copyright 1995