TY - JOUR
T1 - Realism and positivism
AU - Frydrych, David
N1 - Publisher Copyright:
© 2022 Informa UK Limited, trading as Taylor & Francis Group.
PY - 2022
Y1 - 2022
N2 - Several scholars advance the ‘LR-LP thesis’: the claim that American Legal Realism presupposes Legal Positivism. Brian Leiter and Frederick Schauer, prominent scholars of Realism, delimit that thesis to a Razian version of Exclusive Legal Positivism (‘ELP’). This article nevertheless argues that Leiter and Schauer’s respective accounts of Legal Realism are difficult to square with Razian ELP. Indeed, the Realist hypotheses about alternative drivers of official decision, concerning ‘working’ rules, ‘real’ rules, and ‘situation-types’, if correct, actually threaten Razian ELP. Problems arise for the LR-LP thesis (as delimited to Razian ELP) irrespective of whether those three Realist alternative drivers are classified as legal or non-legal norms. If they are non-legal, merits-based norms, then (a) those alternative drivers do much more work within official decision than ELP suggests is the case for those sorts of norms, and (b), Inclusive Legal Positivism may better, and might even be required, to explain them. Alternatively, if those Realist alternative drivers are better understood as source-based legal norms, then they cannot fulfil (or even be claimed by the law to fulfil) certain core functions that ELP attributes to legal norms.
AB - Several scholars advance the ‘LR-LP thesis’: the claim that American Legal Realism presupposes Legal Positivism. Brian Leiter and Frederick Schauer, prominent scholars of Realism, delimit that thesis to a Razian version of Exclusive Legal Positivism (‘ELP’). This article nevertheless argues that Leiter and Schauer’s respective accounts of Legal Realism are difficult to square with Razian ELP. Indeed, the Realist hypotheses about alternative drivers of official decision, concerning ‘working’ rules, ‘real’ rules, and ‘situation-types’, if correct, actually threaten Razian ELP. Problems arise for the LR-LP thesis (as delimited to Razian ELP) irrespective of whether those three Realist alternative drivers are classified as legal or non-legal norms. If they are non-legal, merits-based norms, then (a) those alternative drivers do much more work within official decision than ELP suggests is the case for those sorts of norms, and (b), Inclusive Legal Positivism may better, and might even be required, to explain them. Alternatively, if those Realist alternative drivers are better understood as source-based legal norms, then they cannot fulfil (or even be claimed by the law to fulfil) certain core functions that ELP attributes to legal norms.
KW - Jurisprudence
KW - Legal philosophy
KW - Legal Realism
KW - Official decision
KW - Judicial decision-making
KW - Legal Positivism
UR - http://www.scopus.com/inward/record.url?scp=85135636590&partnerID=8YFLogxK
U2 - 10.1080/20403313.2022.2090752
DO - 10.1080/20403313.2022.2090752
M3 - Article
AN - SCOPUS:85135636590
SN - 2040-3313
VL - 13
SP - 569
EP - 612
JO - Jurisprudence
JF - Jurisprudence
IS - 4
ER -