Legal Realism as Theory of Law

By Green, Michael Steven | William and Mary Law Review, April 2005 | Go to article overview

Legal Realism as Theory of Law


Green, Michael Steven, William and Mary Law Review


TABLE OF CONTENTS

INTRODUCTION
I. THE REALISTS' THEORIES OF LAW
   A. What Are Legal Rules?
   B. What Is the Prediction Theory of Law?
   C. Did the Realists Have a Novel Theory of Law at All?
II. HART ON THE NORMATIVITY OF LAW
   A. Hart's Theory of Law
   B. Can Hart Explain the Law's Normativity?
   C. Shared Cooperative Activities?
   D. The Revenge of the Natural Law Theorist
   E. Non-Cognitivism and the Internal Point of View
III. THE FIRST ARGUMENT AGAINST LEGAL RULES
   A. Legal Rules Are Causally Inert
   B. The First Argument and the
      Rejection of Vested Rights
   C. The First Argument and the Decision Theory of Law
IV. THE SECOND ARGUMENT AGAINST LEGAL RULES
   A. Legal Obligation and Moral Autonomy
   B. The Second Argument and the Realists'
      Theory of Adjudication
   C. The Second Argument and
      "Mechanical Jurisprudence"
V. EXPLAINING THE PREDICTION AND
   DECISION THEORIES OF LAW
   A. The Decision Theory of Law Revisited
   B. Bishop Hoadly
   C. The Prediction Theory of Law Revisited
   D. The Scandinavian Realists
CONCLUSION

INTRODUCTION

The legal realist movement flourished back in the 1920s and 30s, primarily at Yale and Columbia law schools and at Johns Hopkins's short-lived Institute of Law. And yet it is often said--indeed so often said that it has become a cliche to call it a "cliche" (1)--that we are all realists now. (2) The cliche is wrong, however, for there is at least one identifiable (if not sizable) group that rejects realism--philosophers of law. To them, realism is dead, mercifully put to rest by H.L.A. Hart's decisive critique of "rule-skepticism" in the seventh chapter of The Concept of Law. (3)

Hart rejected two forms of rule-skepticism advocated by the realists. It was, on the one hand, a theory of law--the view "that talk of rules is a myth, cloaking the truth that law consists simply of the decisions of courts and the prediction of them...." (4) Hart's argument here was brief, for he thought that this form of rule skepticism was an obvious failure. (5) Decisions cannot be all there is to the law, for courts deciding cases are guided by the law--by the legal rules that can be found in constitutions, statutes, regulations and past judicial opinions. The philosophical community agreed. The realists' theory of law was, in the philosophers' words, "deeply implausible," (6) "open to easy refutation," (7) and "a jurisprudential joke." (8)

Hart took rule-skepticism as a theory of adjudication a bit more seriously. According to this theory, statutes and the like may be law, but they are too indeterminate to be significant influences on, or predictors of, judges' decisions. Because the law is indeterminate, judges actually decide cases on the basis of nonlegal considerations. Hart did not argue that this theory was incoherent, but he did think it was a "great exaggeration." (9) The law is indeterminate at the margins, he argued--it has what he called "open texture"--but it is not indeterminate in its core as the realists claimed.

The seventh chapter of The Concept of Law has cast such a long shadow that only recently has the study of legal realism become halfway respectable in philosophical circles. A prominent example of the renewed interest in the realists is Brian Leiter's defense of their theory of adjudication against Hart's critique. (10) But Leiter, like the rest of the philosophers, has nothing good to say about their theory of law; indeed, part of his strategy for rehabilitating the realists is insisting that they did not mean to offer rule-skepticism as a theory of law in the first place. (11)

I will find little to criticize in Leiter's defense of the realists' theory of adjudication. But Hart was clearly right about the realists' desire to present rule-skepticism as a genuine theory of law. (12) If the realists are to be rehabilitated, we must defend this theory. That is the goal of this Article. …

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