Now that everyone is running from Legal positivism into all forms of situational thinking, Brian Leiter reminds us why legal positivism seemed so radical at the time. It undid all the Hegelian need for situational organic thinking, it undid social realism, and it undid moralism. The law is the law. The law has no external sources and there are no external implications. Now, legal positivism seem stolid and unresponsive. Along the way the anti-liberal Leiter gets in his critique of critical legal studies as not realizing that they were returning to Hegel.
Once upon a time Brisker inspired positivist approaches to halkahah seemed radical, now people are returning to values, [imagined] community, social realism. This article give some of the framework for the comments on the ideal versus real debate in halakhah and why the positivism once seemed attractive.
The Radicalism of Legal Positivism
Brian Leiter, University of Chicago Law School
Guild Practitioner (forthcoming 2010)Abstract:
“Legal positivism” is often caricatured by its jurisprudential opponents, as well as by lawyers and legal scholars not immediately interested in jurisprudential inquiry. “Positivist” too often functions now as an “epithet” in legal discourse, equated (wrongly) with “formalism,” the view that judges must apply the law “as written,” regardless of the consequences. Lon Fuller, Ronald Dworkin, and the Critical Legal Studies writers have all contributed in different ways to the sense that “positivism” is either a political conservative or politically sterile position. This essay revisits the actual theory of law developed by positivist philosophers like Bentham, Hart, and Raz, emphasizing why it is, and was, understood by its proponents, to be a radical theory of law, one unfriendly to the status quo and anyone, judge or citizen, who thinks obedience to the law is paramount. To be clear, the leading theorists of legal positivism thought the theory gave the correct account of the nature of law as a social institution; they did not endorse it because of the political conclusions it entailed, and which they supported. Yet these theorists realized that the correct account of the nature of law had radical implications for conventional wisdom about law. We would do well to recapture their wisdom today.
(The ful article has much more than the abstract)
Full article is available here
On the same trajectory of legal positivism and sittlichkeit
I finally got around to reading –Lawrence Kaplan, From Cooperation to Conflict: Rabbi Professor Emanuel Rackman, Rav Joseph B. Soloveitchik, and the Evolution of American Modern Orthodoxy Modern Judaism Volume 30, Number 1, February 2010. The article was good for clearing up the retrograding of the 1970’s tensions back onto the 1950’s when Rackman was indeed an official spokesman for Rav Soloveithchik. I thank the author for the generous shout out in the footnotes.
In that spirit, I must add to the article and move it more to legal theory. Rackman as a lawyer and political science professor was influenced by Chief Justices Holmes, Brandeis, and Cordozo, by the emergent world of Mishpat Ivri and the rulings of the Warren court. Rav Soloveitchik thought about the rules of science and philosophy, Rabbi Rackman thought about a telos approach using legal categories. The emergent Conservative movement spoke historical approach to law of von Savigny, John Salmond, and economic judicial activism. It is worth considering that some of the YU “young poskim” with JD’s may have more philosophically in common with Rabbi Rackman that with Rabbi Soloveitchik.
Why would Rackman switch to Judaism? Milton Konvitz was one of the three editors and was encouraging Jewish Legal thinking and Jewish Human rights thinking. (And Konvitz was a fan of both Leo Jung and Jacob Agus)- see his Nine American Jewish Thinkers.
The article by Brian Leiter will offer some terms for understanding the Rackman-Soloveitchik positions and return of sittlichkeit in our time.
Copyright © 2010 Alan Brill • All Rights Reserved
The Book of Doctrines and Opinions: 
Alan: Thank you for referring to my article and for your kind remarks. I think your placing the Rackman /Soloveitchik dispute in the context of legal theory is very well taken and, as you say, adds an important dimension to my article. Perhaps I ought to have sent it to you for comments before I submitted it for publication! I welcome commments from bloggers who have read my article.