Legal Positivism As a Realist Theory of Law

Abstract

Earlier papers have explained how "legal realism" presupposes a positivist theory of law. This paper argue that the most plausible version of legal positivism is an essentially "realist" theory.

By “legal positivism,” I mean the view about the nature of law that H.L.A. Hart articulated most powerfully in 1961 (while learning from and modifying the work of Hans Kelsen), and that Joseph Raz developed further in the 1970s and 1980s, according to which (1) where a legal system exists, there exists a “rule of recognition” specifying the criteria in virtue of which norms are valid law; and (2) a rule of recognition is nothing more than a complex psycho-social artifact constituted by the practice of officials, in particular, the criteria of legal validity they converge upon and which they treat as obligatory (in Hartian lingo: that they accept from “an internal point of view”). That means laws and legal systems rest at bottom on the conventional practices of officials.

By realist theories of law, I mean theories which:

(1) describe without sentimental or moralizing illusions what law is and how it actually operates in human societies (descriptive adequacy takes priority over moralizing sermons);

(2) recognize that law is never adequate to explain how courts adjudicate all cases that come before them; and

(3) account for law and adjudication within the constraints of a naturalistic theory of the world, i.e., one that eschews appeal to any entities or properties that do not find a place in successful empirical scientific accounts of natural and social phenomena.

Both the American and Scandinavian (self-identified) “legal realists” were proponents of realist theories of law in this sense, albeit in very different ways, a point to which I return. Hart was a critic of both American and Scandinavian legal realisms, though in both cases he missed his mark. The irony is that Hart’s legal positivism is also a realist theory of law, and once we sort out the misunderstandings and confusions, it will be clear that legal positivists and realists form a unified theoretical front against the moralizing and ideological obfuscators about law, from Lon Fuller to Ronald Dworkin. It will also turn out that one of Raz’s additions to Hart’s theory, namely, the idea that law necessarily claims authority in Raz’s “Service Conception” sense, betrays the realist ambitions of Hart’s theory.

Keywords: legal realism, naturalism, H.L.A. Hart, Joseph Raz, Alf Ross