This insightful Research Handbook provides a definitive overview of the New Legal Realism (NLR) movement, reaching beyond historical and national boundaries to form new conversations. Drawing on deep roots within the law-and-society tradition, it demonstrates the powerful virtues of new legal realist research and its attention to the challenges of translation between social science and law. It explores an impressive range of contemporary issues including immigration, policing, globalization, legal education, and access to justice, concluding with and (...) examination of how different social science disciplines intersect with NLR. (shrink)

This chapter contains section titled: Introduction Legal Indeterminacy The Core Claim of American Legal Realism Two Branches of Realism Naturalized Jurisprudence? How Should Judges Decide Cases? Legacy of Legal Realism I: Legal Education and Scholarship in the United States Legacy of Legal Realism II: Legal Theory References Further Reading.

The American Legal Realists offered several hypotheses about alternative drivers of official decision-making (i.e., considerations other than the rules on the books). This article identifies a tension between two of those hypotheses: the ‘extra-legal’ factors and ‘working’ rules. This tension gets exacerbated in Frederick Schauer’s account of Legal Realism, one which places his Dislocated Determinacy thesis—about working rules constituting an additional ground for the existence of ‘easy’ cases and determinacy across a legal system—into doubt.

The two grand theories of judging – legal realism and legal formalism - have their differences set around the importance of legal rules. For formalists, judging is a rule-bound activity. In its more extreme versions, a judge is seen as an operator of a giant syllogism machine. Legal realists, in contrast, argue that legal rules, at least formal legal rules, do not determine outcomes of cases. Legal realism has been misunderstood almost (...) everywhere outside its birthplace – the United States. Continental legal theory, for one, views legal realism as practical, down-to-earth, hard-nosed school of thought which is opposed to the more “scientific” theories. The purpose of this article is two-fold. First, to show what legal realists really stood for - that contrary to the popular myth, they did not maintain that formal legal rules do not matter at all; that most of them considered legal rules to be important, only many of those rules are informal rules. Second, contrary to the popular understanding in Continental legal theory, legal realism by its nature was not an antiscientific theory of judging - in fact, it was either a first scientific theory of judging or at least its prototype. (shrink)

This chapter contains sections titled: Jurisprudential Methodology Legal Indeterminacy Descriptive Theory of Adjudication The Attack on Formalism Normative Theory of Adjudication Other Themes from Realism References.

Legal Realism Regained presents a comparison between the legal realists, a group of pragmatic legal theorists from the 1920s and 1930s, and critical legal studies, a movement of postmodern legal theory during the end of the twentieth century. The book argues for a return to legal realism and the classical pragmatism of John Dewey and William James and for a rejection of the postmodern critique of critical legal studies. It discusses the (...) two movements with respect to three topics: their view of history, their view of social science, and their view of language. Rejecting the claim that critical legal studies can be seen as the heir of legal realism, Legal Realism Regained argues that, with respect to each of these three topics, the realists still present a stronger argument than their more radical descendants. (shrink)

Pierluigi Chiassoni’s Interpretation without Truth1 is a profoundly important book. And the book is important not only because of its deep, thorough, and impeccably fair analysis of numerous perspe...

This edited volume explores ideas of legal realism which emerge through the works of Russian legal philosophers. Apart from the well-known American and Scandinavian versions of legal realism, there also exists a Russian one: readers will discover fresh perspectives and that the collection of early twentieth century ideas on law discussed in Russia can be understood as a unified school of legal thought – as Russian legal realism. These chapters by renowned European (...) and Eastern European legal philosophers add to ongoing discussions about the nature of law, especially in the context of developments around our scientific knowledge about the mind and behaviour. Analyses of legal phenomena carried out by legal realists in Russia offer novel arguments in favour of embracing psychological and sociological perspectives on the law. The book includes analysis of the St. Petersburg school of legal philosophy and Leon Petrażycki’s psychological theory of law. This original and multifaceted research on Russian realists is of considerable value to an international audience. Researchers and postgraduate students of law, legal theory and legal ethics will find the book particularly appealing, but it will also interest those investigating the philosophy or sociology of law, or legal history. (shrink)

Serving as a philosopher, the author has revealed the excesses of the movement which became that of American legal realism, detected the genuine objectives of the movement, & shown the meaning of these objectives in the broader context of a theory of justice.

This essay uses Schmitt's work to cast new light on the relevance of the American legal tradition known as ‘legal realism’ for the history and analysis of human rights. It does so by exploring several of Schmitt's most famous criticisms of international law and human rights, and then suggests how they might correspond with a widespread critical legal tradition in the 1920s and 1930s. This essay describes in detail two fundamental features of this tradition: historicism and (...) realism. It concludes by suggesting that a return to some of these earlier law writers and texts might be a more substantive way to develop a constructive critical position in the fields of human rights and international law than an overreliance on the politically provocative (and problematic) rhetorical flourishes of Carl Schmitt. (shrink)

In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past. The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed. The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist theory. Leiter’s reading is vulnerable, (...) because he fails to discuss in detail those passages from the realists that inspired past interpretations. My goal is to see how Leiter’s reading fares when these passages are considered. I argue that Leiter is right that the realists’ indeterminacy thesis has only a local scope. Those passages that appear to claim that the law is globally indeterminate actually address three other topics: judicial supremacy, judges’ roles as finders of fact, and the moral obligation to adjudicate as the law commands. With respect to the prediction theory, however, I conclude that Leiter’s position cannot be defended. Indeed the realists offered two “prediction” theories of law. According to the first, which is best described as a decision theory, the law concerning an event is whatever concrete judgment a court will issue when the event is litigated. According to the second, the law is reduced, not to concrete judgments, but to regularities of judicial (and other official) behavior in a jurisdiction. I end this essay with the suggestion that the realists’ advocacy of the second prediction theory indirectly vindicates Leiter’s reading of the realists as prescient jurisprudential naturalists. (shrink)

El realismo jurídico como teoría positivista del derecho Desde los años sesenta del siglo XX, siguiendo a Bobbio, todo el mundo puede distinguir entre tres formas de positivismo jurídico : metodológico, teórico, y ideológico. Por cierto, en la literatura iusfilosófica italiana, a menudo se contrapone el LP al realismo jurídico. Sin embargo, ¿de qué tipo de LP y de LR estamos hablando? En cuanto al LR, los iusfilósofos que oponen realismo y positivismo tienen en mente esencialmente el realismo escandinavo, especialmente (...) Olivecrona y Ross. En cuanto al LP, aquellos iusfilósofos que oponen realismo y positivismo tienen en mente, o bien la teoría del derecho dominante en el siglo XIX, o bien la teoría pura de Kelsen. La oposición entre el LR y la teoría pura es fundada. No obstante, tal oposición no surge de una supuesta postura anti-positivista del LR. Depende más bien de dos tesis kelsenianas no positivistas : el concepto de validez como fuerza vinculante, y la teoría normativa de la ciencia jurídica, concebida como un conjunto de oraciones deónticas que se hacen eco de normas válidas. La oposición entre el LR y el LP del siglo XIX es igualmente fundada, pero no tiene sentido cuando referida al LP contemporáneo, que consiste principalmente en una actitud metodológica hacia el derecho. El LR es una visión abiertamente positivista del derecho. Sin duda, no todos los juristas positivistas son realistas, pero todos los realistas son positivistas. (shrink)

This book demonstrates how legal realism offers important and unique jurisprudential insights that are not just a part of legal history, but are also relevant and useful for a contemporary understanding of legal theory.

2018 marked the centenary of Wesley Hohfeld’s untimely passing. Curiously, in recent years quite a few legal historians and philosophers have identified him as a Legal Realist. This article argues that Hohfeld was no such thing, that his work need not be understood in such lights, and that he in fact made a smaller contribution to jurisprudence than is generally believed. He has nothing to do with theories of official decision-making that identify “extra-legal” factors as the real (...) drivers of judicial decision-making, and nor must his schema of jural relations advance a “Realist” political agenda. Distinguishing Hohfeld from the Realists will correct some misunderstandings about his work and demonstrate its utility in many more contexts than a Realist reading of it allows. (shrink)

Responds to Leiter's naturalist/realist approach to jurisprudence - particularly his claim that such an approach implies exclusive positivism. Considers analogy with naturalized epistemology. "With regard to the first step the realists were anti-foundationalists in the sense that they 'denied that legal reasons justify a unique decision: the legal reasons underdetermine the decision '. The second step, the replacement suggests that instead of a justificatory account of adjudication, i.e. some prescription as to how judges should decide cases, the reaslists (...) provided an empirical description o fhow judges actually decide cases." Notes that positivists are generally commited to a moderate foundationalism by their acceptance of a RoR. "[T]he analogy with the epistemological anti-foundationalist thesis would suggest that foundationalism in law is committed to the view that if X is a legal norm, it is a legal norm in virtue of inference from self-validating foundations. There is nothing in this view that commits the legal foundationalist to the view that legal norms necessarily cover the entire practical domain, and therefor provide a determinate answer to every practical question...Now, if the anti-foundationl step fails, then we need not, indeed must not, take the second step, because if we take it, we will lsoe something of great importance for our understanding of law. If legal norms qua reasons are part of what determines the outcome of cases, then in order to understand how legal decisions are reached, we cannot disregard them." If Leiter rejects this moderate foundationalism, then it is in tension with his other claim that the realists were positivists. Goes on to argue that nothing in the realist program contributes to the hard vs. soft positivism debate and, in fact, does nothing to substantiate positivism. Offers brief explication of "positivism of norms". (shrink)

A current focus of legal debate is the proper role of the courts in the interpretation of statutes and the Constitution. Are judges to look solely to the naked language of an enactment, then logically deduce its application in simple syllogistic fashion, as legal formalists had purported to do? Or may the inquiry into meaning be informed by perhaps unbridled and unaccountable judicial notions of public policy, using legal realism to best promote the general welfare? Judge (...) Posner considers the concepts of formalism and realism to be meaningful and useful in common law reasoning but in interpretation to be useless and, worse, forbidden. He analogizes unclear "orders" from a legislature to garbled battlefield communications, and argues that the duty of the recipient of those orders (the judge) is to advance as best he can the enterprise set on foot by the superiors. Case studies elaborate this thesis. Judicial decisions interpreting fixed texts, Judge Posner concludes, can be neither logically correct or incorrect, philosophically sound or unsound, until the ultimate jurist, time, has adjudged their results. (shrink)

In this article, the essential claims and approaches seen in American and Scandinavian legal realism are presented and compared with Islamic law. The uncertainty on which it is based constitutes the essence of legal realism; In terms of Islamic law, there is no possibility of an uncertainty approach as seen in legal realism. The agreed points became clear and fixed. On the other hand, there are different appearances of clarification, not ambiguity in ijtihad issues. (...) Even though realists reject the understanding of root and source, Islamic law, based on the Book and Sunnah is a legal system that consists of certain roots and develops with them. Despite the rejections of realists, morality and values have a central place and importance in Islamic law. While realists define justice as part of the law and subject to the direction of the law; Islamic jurists are based on the approach of interdependence. While realists reject all the rules of law formed in the process; Islamic jurists systematized the rules of law and compiled works in this context. In contrast to the realists' approach that the law will become clear and come into existence with the decision of the judge, Islamic jurists have declared the system of law, which has come into existence with ijtihad as well as what has become clear with the texts. Contrary to the unlimited pluralism seen in realism due to the rejection of the understanding of root and source, there has been limited pluralism in Islamic law, which finds its traditional meaning within the framework of source understanding. After analyzing these issues in the article, the study was completed with the presentation of the results obtained. (shrink)

The notion of reasonable interpretation of legal texts, as opposed to the absurd or unacceptable interpretation, is presupposed in different legal theories as the fundamental basis of legal rationality and as a clear limitation to chaotic behaviour by courts. This article argues that the ever-present notion of reasonability is not a useful descriptive tool for understanding legal practices or how legal institutions work. The article builds on radical legal realism perspective in order to (...) develop two arguments supporting this claim. First, it argues that, from an empirical point of view, the complexity of contemporary law and its multiple layers of normativity do not allow for the description of what a reasonable interpretation is, since no coherent universal interpretative community can be envisioned. Second, from a conceptual point of view, it argues that describing the references interpreters make to reasonability as references to a semantic object—that is, to some kind of universal “reasonableness”, a model of reasonable behaviour or rationality—is not a reliable way of understanding judicial practice in a certain legal context. This is the case because, as an internal justification discourse, the appeal to reasonability by the interpreter has no bearing on truth or correctness. Nothing prevents courts from cherry-picking a meaning for reasonability in each case, using it as the justification to solve similar cases in different, sometimes contradictory ways. In short, the concept of reasonability cannot be taken, in itself, as an instrument of legal analysis. As a prescriptive discourse, it can merely be one of the objects legal science intends to observe and explain. Its discursive functions—not its semantic references—, as part of a strategy to convince and to justify, are the only observable elements that can sustain a coherent falsifiable description by legal science. (shrink)

This is the second of two volumes announcing the emergence of the new legal realism. At a time when the legal academy is turning to social science for new approaches, these volumes chart a new course for interdisciplinary research by synthesizing law on the ground, empirical research, and theory. Volume 2 explores the integration of global perspectives and information into our understanding of law. Increasingly, local experiences of law are informed by broader interactions of national, international, and (...) global law. Lawyers, judges, and other legal actors often have to respond to these broader contexts, while those pursuing justice in various global contexts must wrestle with the specific problems of translation that emerge when different concepts of law and local circumstances interact. Using empirical research, the authors in this path-breaking volume shed light on current developments in law at a global level. (shrink)

This is the first of two volumes announcing the emergence of the new legal realism as a field of study. At a time when the legal academy is turning to social science for new approaches, these volumes chart a new course for interdisciplinary research by synthesizing law on the ground, empirical research, and theory. Volume 1 lays the groundwork for this novel and comprehensive approach with an innovative mix of theoretical, historical, pedagogical, and empirical perspectives. Their empirical (...) work covers such wide-ranging topics as the financial crisis, intellectual property battles, the legal disenfranchisement of African-American landowners, and gender and racial prejudice on law school faculties. The methodological blueprint offered here will be essential for anyone interested in the future of law-and-society. (shrink)

This article addresses a pertinent challenge to Scandinavian realism which follows from the widespread perception that the fundamental philosophical premises on which the movement relies, are no longer tenable. Focusing on Alf Ross’s version of Scandinavian realism which has often been at the centre of critical attention, the author argues that Ross’s theory can survive the fall of logical positivism through an exercise of philosophical reconstruction. More specifically, he claims that it is possible to dismount Ross’s realist (...) class='Hi'>legal theory almost intact from its commitments to logical positivism and embed it into an alternative naturalist philosophical program that is currently very strong in contemporary philosophy. In so doing, the author applies a narrow Quinean conception of naturalism, also known as replacement naturalism, which differs from a broader inclusive conception which has been applied by other scholars in the field but which leaves the philosophical crisis of Scandinavian realism unsolved. (shrink)

Introduction: From legal realism to naturalized jurisprudence -- A note on legal indeterminacy -- Part I. American legal realism and its critics -- Rethinking legal realism: toward a naturalized jurisprudence (1997) -- Legal realism and legal positivism reconsidered (2001) -- Is there an "American" jurisprudence? (1997) -- Postscript to Part I: Interpreting legal realism -- Part II. Ways of naturalizing jurisprudence -- Legal realism, hard positivism, and (...) the limits of conceptual analysis (1998, 2001) -- Why Quine is not a postmodernist (1997) -- Beyond the Hart/Dworkin debate: the methodology problem in jurisprudence (2003) -- Part III. Naturalism, morality, and objectivity -- Moral facts and best explanations (2001) -- Objectivity, morality, and adjudication (2001) -- Law and objectivity (2002). (shrink)

In teaching jurisprudence, I typically distinguish between two different families of theories of adjudication—theories of how judges do or should decide cases. “Formalist” theories claim that the law is “rationally” determinate, that is, the class of legitimate legal reasons available for a judge to offer in support of his or her decision justifies one and only one outcome either in all cases or in some significant and contested range of cases ; and adjudication is thus “autonomous” from other kinds (...) of reasoning, that is, the judge can reach the required decision without recourse to nonlegal normative considerations of morality or political philosophy. I also note that “formalism” is sometimes associated with the idea that judicial decision-making involves nothing more than mechanical deduction on the model of the syllogism—Beccaria, for example, expresses such a view. I call the latter “Vulgar Formalism” to emphasize that it is not a view to which anyone today cares to subscribe. (shrink)