Getting real or staying positive: Legal Realism(s), Legal Positivism, and the Prospects of Naturalism in Jurisprudence

Research output: Contribution to conferencePaperResearch

The relationship between legal realism and legal positivism has been a constant source of debate since the emergence of realist theories in the first half of the 20th century. The discussion has been further complicated by the related difficulty of assessing the internal relationship between the two main strands of legal realism: American and Scandinavian.
More is at stake in this debate than taxonomic neatness. At stake are wide-reaching methodological questions as to what kind of a science the study of law should be according to legal realism. Questions that are often formulated in a modern context as questions about the potential for naturalism in legal science, i.e. for associating the study of law with the ongoing empirical turn in epistemology and philosophy of science which implies that these previously a priori disciplines be transformed into empirical knowledge and science studies under the slogan: “Out of the armchair and into the field!”
Much confusion in the present debate seems to stem from a failure to correctly identify the kind of rule-skepticism underlying realism – or from the related failure to correctly identify possible differences on this issue between the two kinds of realism. With specific regard to American realism recent work, notably by Brian Leiter, has admittedly been helpful in correcting some of these misunderstandings. But with regard to Scandinavian realism we do not seem to be much farther along today than where Hart left us half a century ago with his hugely influential but equally mistaken writings on legal realism.
In this paper I try to bring discussion forward by introducing, as an analytical tool, a distinction between two kinds of rule-skepticism, i.e. between so-called forward-looking rule-skepticism which is implicational and decisional and backward-looking rule-skepticism which is regressive and foundational. I then argue that we ought to see American and Scandinavian realism (at least in suitably ideal-typical philosophical reconstructions) as being based respectively on forward-looking and backward-looking rule-skepticism. Doing so gives us a clearer understanding not only of the fundamentally different kinds of theoretical relationship between each of the two realisms and legal positivism but also of the equally different prospects of naturalism delivered by each of them.
With a view to the future this arguably leaves legal theory with a dilemma between two mutually exclusive models for a modern legal realism. I suggest in closing that in so far that American realism can be seen to rely only on forward-looking rule-skepticism it occupies an uncomfortable and ultimately untenable middle-position between “real” legal realism and legal positivism – and correspondingly between wholehearted naturalism and traditional foundationalist justificatory jurisprudence. This in contrast with Scandinavian realism in so far that it can be seen to rest rather on backward-looking rule-skepticism. In spite of being obviously outdated in a number of ways, this kind of realism both presents a clear and consistent alternative to legal positivism and remains fully compatible with modern naturalism in philosophy.
Original languageEnglish
Publication date29 May 2012
Number of pages27
Publication statusPublished - 29 May 2012
EventNew Frontiers of Legal Realism: American, Scandinavian, European, Global - Copenhagen
Duration: 29 May 201230 May 2012

Conference

ConferenceNew Frontiers of Legal Realism: American, Scandinavian, European, Global
CityCopenhagen
Period29/05/201230/05/2012

    Research areas

  • The Faculty of Law - Legal realism, legal philosophy, legal positivism, Scandinavian legal realism, American legal realism, naturalism, Alf Ross, Brian Leiter

ID: 40358481