The Real Legacy of American Legal Realism

Oxford Journal of Legal Studies (Forthcoming)

35 Pages Posted: 22 Mar 2017 Last revised: 26 Oct 2017

See all articles by Hanoch Dagan

Hanoch Dagan

Tel Aviv University - Buchmann Faculty of Law

Date Written: October 24, 2017

Abstract

The most important promise of the legacy of legal realism is its robust understanding of law, which is irreducible to one or another more or less familiar jurisprudential school, as a set of institutions distinguished by the difficult accommodation of three constitutive yet irresolvable tensions: between power and reason, science and craft, and tradition and progress. This essay defends that view through a critical analysis of Brian Leiter’s ambitious and provocative account of legal realism, whose legacy he described as naturalized jurisprudence. I argue that Leiter understates the realist indeterminacy critique of pedigreed sources, misses the realist distinction between doctrine (or pedigreed sources) and law, and errs in classifying legal realists as tacit hard positivists. Studying these mistakes and refining his naturalistic claims reveals why Leiter must also be incorrect in reducing legal realism to a descriptive theory of adjudication. Leiter’s account obscures the real legacy of legal realism.

Keywords: American Legal Realism, Legal Theory, Jurisprudence, Rule of Law

Suggested Citation

Dagan, Hanoch, The Real Legacy of American Legal Realism (October 24, 2017). Oxford Journal of Legal Studies (Forthcoming). Available at SSRN: https://ssrn.com/abstract=2938349 or http://dx.doi.org/10.2139/ssrn.2938349

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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