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4 - Legal Positivism as a Realist Theory of Law

from Part I - Fundamentals

Published online by Cambridge University Press:  21 January 2021

Torben Spaak
Affiliation:
Stockholms Universitet
Patricia Mindus
Affiliation:
Uppsala Universitet, Sweden
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Summary

Leiter considers the relation between legal positivism and legal realism. He argues that H. L. A. Hart’s theory of law is really a species of legal realism, and that there are four ways in which this is so, namely, that the law operates primarily outside the courts; that the law is sometimes rationally indeterminate; that the law is explicable in wholly naturalistic terms; and that the law is not necessarily morally good. He also argues that Hart’s critique of American legal realism is misguided, because Hart would fail to distinguish clearly between conceptual legal realism, which is a theory about the nature of law according to which there are no legal rules and law consists in court decisions and predictions about them, and empirical legal realism, which is a claim about how it is useful for attorneys to think about law when they advise their clients and which says that it is a mistake to think that judges (and others) are bound by legal rules. As Leiter sees it, while conceptual rule-skepticism is indeed mistaken, the Americans do not embrace it, and while they do embrace empirical rule-skepticism, this type of rule-skepticism is justified.

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Publisher: Cambridge University Press
Print publication year: 2021

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References

Cohen, F. 1935. ‘Transcendental Nonsense and the Functional Approach’. Columbia Law Review 35: 809–49.CrossRefGoogle Scholar
Frank, J. 1930. Law and the Modern Mind. Brentano’s.Google Scholar
Hart, H. L. A. 1983. ‘Scandinavian Realism’. In Essays in Jurisprudence and Philosophy. Oxford University Press: 161–9.Google Scholar
Hart, H. L. A. 2012. The Concept of Law. 3rd ed. Oxford University Press.Google Scholar
Holmes, O. W. 1897. ‘The Path of the Law’. Harvard Law Review 10: 457–78.Google Scholar
Hutcheson, J. C. 1929. ‘The Judgment Intuitive: The Function of the “Hunch” in Judicial Decisions’. Cornell Law Quarterly 14: 274–88.Google Scholar
Jackson, F. 1998. From Metaphysics to Ethics. Oxford University Press.Google Scholar
Leiter, B. 2001. ‘Legal Realism and Legal Positivism Reconsidered’. Ethics 111: 278301.CrossRefGoogle Scholar
Leiter, B. 2007. Naturalizing Jurisprudence. Oxford University Press.Google Scholar
Leiter, B. 2009. ‘Explaining Theoretical Disagreement’. University of Chicago Law Review 76: 1215–50.Google Scholar
Leiter, B. 2012. ‘In Praise of Realism (and Against “Nonsense” Jurisprudence)’. Georgetown Law Journal 100: 865–93.Google Scholar
Leiter, B. 2015. ‘Normativity for Naturalists’. Philosophical Issues: A Supplement to Nous 25: 6479.Google Scholar
Leiter, B. and Etchemendy, M. 2017. ‘Naturalism in Legal Philosophy’. In Zalta, E. N. (ed.). Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/archives/sum2017/entries/lawphil-naturalism/.Google Scholar
Llewellyn, K. 1930a. The Bramble Bush. Oceana Publications.Google Scholar
Llewellyn, K. 1930b. ‘A Realistic Jurisprudence: The Next Step’. Columbia Law Review 30: 431–65.Google Scholar
Llewellyn, K. 1931. ‘Some Realism about Realism: Responding to Dean Pound’. Harvard Law Review 44: 1222–64.Google Scholar
Llewellyn, K. 1950. ‘Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed’. Vanderbilt Law Review 3: 395406.Google Scholar
Llewellyn, K. 1960. The Common Law Tradition. Little, Brown & Co.Google Scholar
Mindus, P. 2009. A Real Mind: The Life and Work of Axel Hägerström. Springer.Google Scholar
Oliphant, H. 1928. ‘A Return to Stare Decisis’. American Bar Association Journal 14: 71–6.Google Scholar
Olivecrona, K. 1971. Law as Fact. 2nd ed. Stevens & Sons.Google Scholar
Radin, M. 1930. ‘Statutory Interpretation’. Harvard Law Review 43: 863–85.Google Scholar
Radin, M. 1942. ‘In Defense of Unsystematic Science of Law’. The Yale Law Journal 51: 1269–79.Google Scholar
Raz, J. 1985. ‘Authority, Law, and Morality’. The Monist 68: 295324.Google Scholar
Raz, J. 1986. The Morality of Freedom. Oxford University Press.Google Scholar
Ross, A. 1959. On Law and Justice. University of California Press.Google Scholar
Shapiro, S. 1998. ‘On Hart’s Way Out’. Legal Theory 4: 469507.Google Scholar
Spaak, T. 2009. ‘Karl Olivecrona on Judicial Lawmaking’. Ratio Juris 22: 483–98.Google Scholar
Spaak, T. 2011. ‘Karl Olivecrona’s Legal Philosophy: A Critical Appraisal’. Ratio Juris 24: 156–93.Google Scholar
Toh, K. 2005. ‘Hart’s Expressivism and His Benthamite Project’. Legal Theory 11: 75123.Google Scholar

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