Legal Realism, Pluralism, and their Challengers
EUROPEAN LEGAL METHOD - TOWARDS A NEW EUROPEAN LEGAL REALISM?, U. Neergaard, R. Nielsen, eds., Copenhagen: DJOEF Publishing, 2013
25 Pages Posted: 13 Dec 2012
Date Written: December 12, 2012
This paper looks at the intersection of three strands of legal scholarship. Legal realism and legal pluralism can each trace their origins back to the early years of the last century. After a comparative decline of interest, they are now back in fashion, with energetic debate raging over their implications for legal scholarship. Alongside this revival, a challenger has emerged. Inspired by the work of Ronald Dworkin, a number of scholars have argued for an understanding of law that, initially at least, appears to place both realism and pluralism beyond the reach of legal theory. This paper seeks to defend both realism and pluralism against this challenge. It contends, first, that the complementary analytical attractions of realism and pluralism provide reasons why the Dworkinian approach to law ought not to be embraced. Secondly, even if we were to adopt the Dworkinian account of law, this would still leave the core insights of realism and pluralism untouched: even a Dworkinian must accept the need for a complementary ‘sociological’ concept of law to supplement her ‘doctrinal’ account of law. Finally, under certain conditions even a Dworkinian account of law leaves space for legal pluralism, though not for legal realism. Perhaps Dworkinians can be pluralists, too.
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