Law and the Causes of Judicial Decisions

Abstract:     
This paper tests Brian Leiter's claim that the American legal realists were proto-naturalists in legal philosophy and were therefore immune to objections based on claims that they offered defective analyses of legal concepts. It disputes Leiter's account of the core claim of American realist thought, and reaffirms the view that some of them were engaged in, or presupposed, conceptual work of a kind familiar to analytic jurisprudence. It explains how those who did not intend to offer conceptual analyses nonetheless made conceptual errors. It offers a fresh account of the basis of realist scepticism, deploying the idea of 'permissive sources' of law. The paper concludes with general reflections on the preconditions and prospects for 'naturalizing' jurisprudence, suggesting that Hans Kelsen was correct to think that such efforts are likely to change the subject.

Keywords: legal realism, Amerrican Legal Realism, Brian Leiter, HLA Hart, Hans Kelsen, naturalism, legal positivism, selection effects, permissive sources of law, Karl Llewellyn, Felix Cohen, Oliver Wendell Holmes, philosophy of law, jurisprudence, legal obligations, legal rules

Working Paper Series