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Published online by Cambridge University Press: 16 October 2009
CLASSICAL LEGAL POSITIVISM AND CLASSICAL COMMON LAW THEORY
The best place to begin any discussion of legal positivism and American jurisprudence is 1940, which is when Lon Fuller accused legal realism of being merely a subspecies of positivism. Fuller thought that legal realism and legal positivism were part of the same jurisprudential family tree. He thought that legal realism was a modern American modification to the legal positivism of Jeremy Bentham and John Austin:
We may say of modern positivistic theories that they diverge … [One view] which may be called the “realist” view is represented by numerous American writers … These men represent that direction of legal positivism which seeks to anchor itself in some datum of nature, which considers that the law's quest for itself can end successfully only if it terminates in some tangible reality.
It is clear that the association of realism with positivism was supposed to weaken realism, and this suggests that positivism was perceived as quite unpopular among Fuller's intended audience. Fuller represented a tendency among American natural law theorists to conflate legal realism and legal positivism. It seemed quite natural to Fuller to attribute the rise of fascism to the European embrace of positivism: “[Legal positivism] played an important part … in bringing Germany and Spain to the disasters which engulfed those countries.” Fuller's comments gave support to others who were mounting a campaign to connect legal realism and fascism.
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