Law and the Great Plains: Essays on the Legal History of the Heartland

By John R. Wunder | Go to book overview

tional legal theory and actual legal practice. Legal realism cannot supply a competing legal theoretic framework, however, nor undermine the general framework of rule-centered jurisprudence.

Nothing in the above discussion counts against an empirical study of law, so long as such an approach involves an empirical study of norms. Despite their many insights and the attempt by some to rely on a pragmatic epistemology, the legal realists were misled, in much of their critique of rule-centered jurisprudence, by an inadequate epistemology for understanding social phenomena. By recapturing the hermeneutic theme of H.L.A. Hart's work, and further developing Hart's discussions of primary rules while overcoming his occasional reliance on an objectionable formalism, it should be possible to take into account the insights found in The Cheyenne Way and other legal realist literature--while fortifting rather than displacing rule-centered jurisprudence.


NOTES
1.
Karl N. Llewellyn and Edward Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence ( Norman: University of Oklahoma Press, 1941).
2.
Ibid., p. viii.
3.
Ibid., p. 20.
4.
Karl Llewellyn, "On Reading and Using the Newer Jurisprudence," Columbia Law Review 40 ( April, 1940): 581-614; reprinted in Karl Llewellyn, Jurisprudence: Realism in Theory and Practice ( Chicago: University of Chicago Press, 1962), p. 152. See also William Twining, Karl Llewellyn and the Realist Movement ( London: Weidenfeld and Nicolson, 1973).
5.
The contemporary Critical Legal Studies (CLS) movement is partly rooted in the American legal realist movement. See Scott Landers, "Wittgenstein, Realism, and CLS: Undermining Rule Scepticism," Law and Philosophy 9 ( 1990): 177-203 and see the relevant works cited therein.
6.
Karl Llewellyn, "A Realistic Jurisprudence--the Next Step," Columbia Law Review 30 ( April, 1930): 431-65, reprinted in Llewellyn, Jurisprudence, p. 7. Roscoe Pound responded with an attempt to characterize legal realism in his largely unsympathetic "The Call for a Realist Jurisprudence," Harvard Law Review 44 ( March, 1931): 697-711. Llewellyn's response to Pound, "Some Realism about Realism--Responding to Dean Pound," Harvard Law Review 44 ( June, 1931): 1222-64, effectively destroyed Pound's characterization.
7.
Llewellyn, "A Realistic Jurisprudence," Jurisprudence, pp. 39-40.
8.
Karl Llewellyn, "On the Good, the True, the Beautiful, in Law," University of Chicago Law Review 9 ( February, 1942): 224-65; Llewellyn, Jurisprudence, pp.167-213.

-110-

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