Logic and Legal Realism

in Dieter Krimphove & Florian Simon (eds.), Research Handbook in Law and Logic 81-94 (Duncker & Humblot 2017)

William & Mary Law School Research Paper No. 09-395

15 Pages Posted: 23 May 2019

Date Written: 2017

Abstract

According to the prevailing reading, the American legal realists believed that reliance on logic in legal reasoning is mistaken and that many traditional jurists succumbed to this mistake. But the prevailing reading is wrong. The set of loosely-related errors to which the realists thought traditional jurists succumbed did not concern reliance on logic.

Sometimes the realists’ target was the traditionalists’ misguided faith in the law’s rational determinacy. Sometimes it was the traditionalists’ commitment to categorical legal rules, when legal reasoning was in fact a matter of contextualized balancing. Sometimes it was their failure to recognize the consequences of judicial supremacy or the role of courts in establishing the facts of a case. And sometimes it was the traditionalists’ misguided theory of political obligation: their belief that the existence of law necessarily entailed justified reasons for obedience.

Keywords: Legal Realism, Logic, Syllogistic Reasoning, Philosophy of Law, Legal History

Suggested Citation

Green, Michael S, Logic and Legal Realism (2017). William & Mary Law School Research Paper No. 09-395. Available at SSRN: https://ssrn.com/abstract=3386375

Michael S Green (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
(757) 221-7746 (Phone)

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