Friday, March 24, 2017
The Real Legacy of American Legal Realism by Hanoch Dagan.
"Brian Leiter famously described the legacy of American legal realism as a ‘naturalized jurisprudence predicated on a pragmatic outlook’. This essay offers a critical analysis of Leiter’s ambitious and provocative account of legal realism. I argue that, beside many insights, Leiter makes several related mistakes that, eventually, obscure the most important promise of the realist legacy. Leiter understates the realist indeterminacy critique of pedigreed sources, misses the realist distinction between doctrine (or pedigreed sources) and law, and is wrong in classifying the legal realists as tacit hard positivists. Studying these mistakes reveals why Leiter must be incorrect in reducing legal realism to a descriptive theory of adjudication. A further contribution is the return to the realist robust understanding of law as an ongoing institution (or 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."