The Magical Legal Realism of Tû-Tû: A Tale Told by an Obtuse Observer, Signifying Nothing

Abstract

Magical realism is a literary style that presents fictional worlds and characters in a very realistic way but also adds absurd elements to the story. Legal realism is “magical” in the same sense. The Scandinavian school, in particular, purports to offer a realistic description of law but inadvertently adds a preposterous element to its narrative: a narrator that is supposed to have no previous knowledge about the normative phenomena he is describing. However, this ideal observer of legal phenomena does not exist in fact; any legal scholar shares with the participants of the legal practice she is observing enough of the same intra-discursive code to be a participant in that same practice, whether she is aware of it or not. Furthermore, when transposed to modern legal states, the perspective of an overidealized observer – as the one suggested by Ross in Tû-Tû – necessarily leads to an obtuse and unrealistic account of legal practice. My conclusions are based on the following premises. (1) In legal discourse, one can formulate claims of three types: intra-discursive, extra-discursive, or inter-discursive. (2) What the members of a legal community refer to as their “law” is the hetero-discursive code that makes their legal claims intelligible as such. (3) Law’s intra-discursive code embraces not only legal wording but also its context, that is, legal practice and institutions. (4) Distinctive of the legal participant’s perspective, as opposed to the legal observer’s, is not the use of prescriptive language but the logical possibility of making intra-discursive legal claims. Thus, inasmuch as the perspective of an overidealized observer recommended by legal realism is unrealistic, a legal scholar who attempted to adopt that epistemological position would be at best a cynical participant (pretending to be an observer) – and so would be her description of legal practice.

Keywords: Legal realism, Magical realism, Alf Ross, Participant’s perspective, Observer’s perspective