Legal Realism and Legal Doctrine

Judges and Adjudication in Constitutional Democracies: A View from Legal Realism (Pierluigi Chiassoni & Bogan Spaić eds., 2020 Forthcoming)

Osgoode Legal Studies Research Paper

34 Pages Posted: 2 Dec 2019

See all articles by Dan Priel

Dan Priel

York University - Osgoode Hall Law School

Date Written: November 16, 2019

Abstract

Legal realism is widely perceived to be hostile to legal doctrine. In the familiar narrative, the realists showed that legal doctrine does not, and cannot, constrain judges from using existing legal materials to reach virtually any outcome they want. As such, doctrine only serves to hides and obfuscate what is better discussed openly. The purpose of this essay is to complicate this familiar story. I focus on one contemporary take on legal realism that argues that an open discussion of values will give the law greater determinacy. I counter this view, first, by showing that it does not, in fact, fit the views of the legal realists, but reflects a modern view that fits contemporary (American) academic legal discourse. I also argue that it’s very unlikely that such a view would improve the law’s determinacy, and that it is likely to have undesirable consequences. I then propose an alternative, which I trace to work by some of the legal realists. This approach gives a clear role to legal doctrine and, so I argue, is normatively more appealing than the view that minimizes its role.

Keywords: legal realism, legal doctrine, adjudication, institutional design, jurisprudence

Suggested Citation

Priel, Dan, Legal Realism and Legal Doctrine (November 16, 2019). Judges and Adjudication in Constitutional Democracies: A View from Legal Realism (Pierluigi Chiassoni & Bogan Spaić eds., 2020 Forthcoming), Osgoode Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=3488345

Dan Priel (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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