Comments on Gerald postema, legal philosophy in the twentieth century: The common law world

Legal Philosophy in the Twentieth Century is an engaging presentation of the Common Law tradition in the twentieth century from which non-specialist readers like myself stand to learn much about the challenges faced by the project of ‘general jurisprudence’ as a ‘sociable science’ (Coke), defended by Postema in the conclusion of his book. Postema arranges the complex material of twentieth-century Common Law jurisprudence into two currents, those of ‘legal realism’ and ‘critical positivism’, and he presents Holmes and Hart, respectively, as their fountainheads. As I read the book, Postema is not neutral towards these two currents: he believes the second one is more conducive towards the goals of general jurisprudence than the first because he understands American legal realism to have inherited an ‘anti-philosophical’ bent that leads its proponents to downplay the systematic, rational nature of law. However, in my opinion Postema downplays or ignores the relation between law, power and community which plays a crucial role not only in the current of legal realism, but also in a third current which Postema does not address in this book, namely, that of legal pluralism. My point is that a consideration of the relation between law and power is just as important as the relation between law and reason if the goal of general jurisprudence is to be attained. In what follows I shall illustrate this point by discussing Postema’s interpretations of Holmes and of Hart respectively.