Abstract

http://ssrn.com/abstract=608383
 
 

Citations (11)



 
 

Footnotes (267)



 


 



The Realist Conception of Law


Hanoch Dagan


Tel Aviv University - Buchmann Faculty of Law

October 20, 2004



Abstract:     
A well known truism states that the realist conception of law is false or nonexistent. Those who view the infamous predictive theory of law as synonymous with the legal realist conception of law point to its well-known deficiencies. Others, who focus on the realists' suspicion of conceptual analysis, hold that legal realism fails to offer any interesting insights into the concept of law.

Almost as commonplace is the claim that the reason "we are all realists now" is that legal realism represented a crude revolt against formalism, assembling an incoherent set of rudimentary ideas. Once these various claims were developed by its later heirs, legal realism inevitably diverged into a set of distinct, sharp, and oftentimes conflicting perspectives on law.

This Article contests both of these cliches. It revives the legal realists' rich account of law as a going institution accommodating three sets of constitutive tensions-between power and reason, science and craft, and tradition and progress - and demonstrates how the major claims attributed to legal realism fit into this conception of law. Finally, this Article claims that the contemporary heirs of legal realism have each focused on one element of a single constitutive tension rather than refining, as conventional wisdom might hold, a confused collection of rudimentary claims. While contemporary accounts of law enhance our understanding of its characteristics, only the realist conception captures law's most distinctive feature: the uncomfortable, but inevitable, accommodation of these constitutive tensions.

Number of Pages in PDF File: 69

working papers series


Download This Paper

Date posted: October 25, 2004  

Suggested Citation

Dagan, Hanoch, The Realist Conception of Law (October 20, 2004). Available at SSRN: http://ssrn.com/abstract=608383 or http://dx.doi.org/10.2139/ssrn.608383

Contact Information

Hanoch Dagan (Contact Author)
Tel Aviv University - Buchmann Faculty of Law ( email )
Ramat Aviv
Tel Aviv 69978, IL
Israel
+972 3 640 7302 (Phone)
Feedback to SSRN


Paper statistics
Abstract Views: 2,212
Downloads: 583
Download Rank: 24,564
Citations:  11
Footnotes:  267

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.313 seconds