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Law and the Causes of Judicial Decisions

36 Pages Posted: 8 Apr 2009  

Leslie Green

University of Oxford - Faculty of Law; Queen's University - Faculty of Law

Date Written: April 7, 2009

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

Suggested Citation

Green, Leslie, Law and the Causes of Judicial Decisions (April 7, 2009). Oxford Legal Studies Research Paper No. 14/2009. Available at SSRN: https://ssrn.com/abstract=1374608 or http://dx.doi.org/10.2139/ssrn.1374608

Leslie Green (Contact Author)

University of Oxford - Faculty of Law ( email )

Balliol College
Oxford
Oxford, UK, OX1 3BJ
United Kingdom

Queen's University - Faculty of Law ( email )

Kingston, Canada, Ontario K7L3N6
Canada

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