Legal Realism: In Search of a Science of Law

28 Pages Posted: 8 Apr 2017 Last revised: 8 Jul 2017

Henrik Palmer Olsen

University of Copenhagen - iCourts - Centre of Excellence for International Courts

Stuart Toddington

University of Huddersfield

Date Written: April 7, 2017

Abstract

Legal Realism is a critique of Legal Formalism’s account of how legal validity emerges from the process of adjudication. Formalism sees legal validity as a product of the self-sufficiency of doctrinal materials interpreted in the light of a unique form of normative logic ‒ Legal Reasoning. Realism is right to resist this formalistic introversion, but in its desire to range substance and content against the circularity of formalism, contemporary Realism has confused the tangible and the actual with the essential and the real. The critical rejection of formalism, however, calls for even greater conceptual and theoretical effort than before, not an ultra-positivistic abrogation of critique that acknowledges only the empirical as scientific subject matter. Legal Realism’s critique of Formalism cannot be coherently or relevantly configured methodologically as an amalgamation of Legal Positivism and Logical Empiricism. Rather, we argue that only when an empirical inquiry into legal phenomena is combined with an ethically informed verstehende sociology can we break the circle of formalism and establish legal theory as a science of legal validity.

Keywords: Legal Realism, Formalism, American Legal Realism, Logical Empiricism, Alf Ross, Methodology, Concept-Formation, Epistemology, Validity, Max Weber, Rational Causation, verstehen, Law Jobs, K. N. Llewellyn, Legal Idealism

Suggested Citation

Olsen, Henrik Palmer and Toddington, Stuart, Legal Realism: In Search of a Science of Law (April 7, 2017). University of Copenhagen Faculty of Law Research Paper No. 20017-36; iCourts Working Paper Series No. 91 . Available at SSRN: https://ssrn.com/abstract=2948489 or http://dx.doi.org/10.2139/ssrn.2948489

Henrik Palmer Olsen (Contact Author)

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

Studiestraede 6
Copenhagen, DK-1455
Denmark

Stuart Toddington

University of Huddersfield ( email )

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