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Normative Jurisprudence and Legal Realism

63 University of Toronto Law Journal (2013), Forthcoming

16 Pages Posted: 1 Dec 2012  

Hanoch Dagan

Tel Aviv University - Buchmann Faculty of Law

Date Written: December 1, 2012

Abstract

This review article examines Robin West’s provocative new book Normative Jurisprudence: An Introduction. West provides a learned and sophisticated account of the decay of the three major jurisprudential traditions of North American legal theory: natural law, legal positivism, and critical legal studies, which leads to and is motivated by a spirited plea for the reinvigoration of distinctively legal normative scholarship. Her proposed genealogy is valuable and her preliminary blueprint for reform important. But I believe that both fronts can be significantly enriched by a more charitable reading of legal realism than the one she (briefly) provides. Thus, this review offers a competing genealogical account of the three contemporary approaches to law West criticizes, claiming that like critical scholars, promoters of institutional fit and of economic efficiency are also intellectual descendants of legal realism. Legal realism, I insist, provides a subtle conception of law as a set of institutions distinguished by the irreducible cohabitation of power and reason, science and craft, and tradition and progress. This conception, which was torn apart by the realists’ heirs, offers the key to a proper cure to the predicament West identifies by pointing out to a robust understanding of legal theory and thus of the distinctive contribution legal scholars can make in normative debates.

Suggested Citation

Dagan, Hanoch, Normative Jurisprudence and Legal Realism (December 1, 2012). 63 University of Toronto Law Journal (2013), Forthcoming. Available at SSRN: https://ssrn.com/abstract=2183119

Hanoch Dagan (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel
+972 3 640 7302 (Phone)

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