The Politics of Legal Theory Revisisted

Abstract

Most legal positivists today hold that legal positivism is a morally neutral and purely descriptive account of the nature of law. This article considers this claim by examining Brian Leiter’s intriguing claim to the contrary. While I welcome examining the political presuppositions of jurisprudential theories, I show that the association of legal positivism with radicalism is not true. Examining the works of prominent legal positivists, I show that there is no basis for thinking of any of them as a political radical. I also show that many legal positivists were politically conservative. Beyond the historical question, I also argue that there is no basis for the claim that legal positivism is necessary for radical political action. On the contrary, I show that many radical political movements aligned with natural law theory and offer a possible explanation for this phenomenon. The latter point serves as the basis for an alternative way of explaining the political component of legal theory. I propose that we stop thinking of competing theories of law as descriptive or conceptual claims about the nature of law and think of them instead of grounded in different political ideas of legitimate authority.