'Legal Realism as Theory of Law' by Michael Steven Green in (2005) 46
William and Mary Law Review 1915-2000
comments that
Most philosophers of law, following H.L.A. Hart, believe that the legal realists' rule-skepticism is not a coherent theory of law. Even Brian Leiter, who seeks to defend the realists against Hart, agrees that rule-skepticism fails as a theory of law. Indeed, an essential part of Leiter's rehabilitation of the realists is his argument that they did not mean to offer a theory of law at all.
This article is a defense of the realists' rule-skepticism as a theory of law. The heart of my argument is that their rule-skepticism was actually an attack, common among philosophical anarchists, on the ability of the law to provide citizens (and particularly judges adjudicating cases) with objective reasons for obedience. Seen in this light, the realists' seemingly absurd claims that legal rules do not exist start making a good deal of sense.
Green argues that
The legal realist movement flourished back in the 1920s and 30s, primarily at Yale and Columbia law schools and at Johns Hopkins’s short-lived Institute of Law. And yet it is often said—indeed so often said that it has become a cliché to call it a “cliché” — that we are all realists now. The cliché is wrong, however, for there is at least one identifiable (if not sizable) group that rejects realism — philosophers of law. To them, realism is dead, mercifully put to rest by H.L.A. Hart’s decisive critique of “rule-skepticism” in the seventh chapter of The Concept of Law.
Hart rejected two forms of rule-skepticism advocated by the realists. It was, on the one hand, a theory of law—the view “that talk of rules is a myth, cloaking the truth that law consists simply of the decisions of courts and the prediction of them ….” Hart’s argument here was brief, for he thought that this form of rule-skepticism was an obvious failure. Decisions cannot be all there is to the law, for courts deciding cases are guided by the law — by the legal rules that can be found in constitutions, statutes, regulations and past judicial opinions. The philosophical community agreed. The realists’ theory of law was, in the philosophers’ words, “deeply implausible,” “open to easy refutation,” and “a jurisprudential joke.”
Hart took rule-skepticism as a theory of adjudication a bit more seriously. According to this theory, statutes and the like may be law, but they are too indeterminate to be significant influences on, or predictors of, judges’ decisions. Because the law is indeterminate, judges actually decide cases on the basis of nonlegal considerations. Hart did not argue that this theory was incoherent, but he did think it was a “great exaggeration.” The law is indeterminate at the margins, he argued—it has what he called “open texture”— but it is not indeterminate in its core as the realists claimed.
The seventh chapter of The Concept of Law has cast such a long shadow that only recently has the study of legal realism become halfway respectable in philosophical circles. A prominent example of the renewed interest in the realists is Brian Leiter’s defense of their theory of adjudication against Hart’s critique. But Leiter, like the rest of the philosophers, has nothing good to say about their theory of law; indeed, part of his strategy for rehabilitating the realists is insisting that they did not mean to offer rule-skepticism as a theory of law in the first place.
I will find little to criticize in Leiter’s defense of the realists’ theory of adjudication. But Hart was clearly right about the realists’ desire to present rule-skepticism as a genuine theory of law. If the realists are to be rehabilitated, we must defend this theory. That is the goal of this Article.
I will defend the realists’ theory of law, however, only in the sense of showing that it is plausible, not that it is beyond criticism. A number of weaknesses, inconsistencies, and oddities will remain. But the theory is not the absurdity that the philosophical community has made it out to be.
Admittedly, it is dangerous to speak of a theory held by the realists as a group, even when the group is limited to those most commonly agreed to be realists — Karl Llewellyn, Jerome Frank, Walter Wheeler Cook, Felix Cohen, Hessel Yntema, Herman Oliphant, Max Radin, Leon Green, and Joseph Hutcheson. It is still more dangerous when the theory is in the philosophy of law, given that the realists — Cohen excepted — did not have significant training in philosophy. Nevertheless, realism remains a subject of more than historical interest precisely because unifying themes can be found in the realists’ writings. And some of the most important themes are philosophical. The fact that most of the realists lacked philosophical training does not mean they lacked philosophical opinions. All it means is that these opinions were expressed imperfectly in their works, making some philosophical reconstruc- tion necessary.
As a part of this philosophical reconstruction, I will argue that the realists actually held a number of theories of law that differ in their degree of plausibility. Both the realists and their critics tend to treat these theories as if they were equivalent. Hart, for example, describes the realists’ theory of law as the view that “talk of rules is a myth, cloaking the truth that law consists simply of the decisions of courts and the prediction of them.” But there are at least two theories of law in this description. The first is the idea that “talk of rules is a myth.” Surprisingly, the realists’ rejection of legal rules is their most defensible theory of law, and it will be the focus of this Article. Properly understood, however, it does not deny that statutes and the like can be law; nor does it deny that these laws can guide a judge’s decision making when the judge’s attitudes recommend conformity with the law. Instead, the theory rejects the ability of the law to provide reasons for conformity with what the law recommends that exist independently of the judge’s attitudes. The realists’ rejection of legal rules was an attack on the idea of political obligation and the duty to obey the law. A statute can be the law without being a legal rule in the relevant sense, for its status as law may not provide a rebellious judge with any reason to adjudicate as the statute instructs.
But the realists were also committed to a less plausible theory of law—the famous prediction theory that they borrowed from Holmes. This theory is captured by the second part of Hart’s description, that “law consists simply of the decisions of courts and the prediction of them,” and it does indeed cast doubt on the idea that statutes and the like can be law. Properly understood, however, even this theory (or rather theories, for the prediction theory took two forms in the realists’ writings) was not quite as crazy as the philosophers make it out to be. What is more important, even though the prediction theories ultimately fail, they are at least understandable when seen in the light of the realists’ rejection of legal rules. The realists thought—wrongly but reasonably—that these theories followed from the law’s inability to provide reasons for obedience.
I will begin in Part I by clarifying the various theories of law that I will attribute to the realists, in addition to criticizing Leiter’s argument that they did not mean to offer a novel theory of law at all. In Part II, I will set the stage for my defense of the realists’ first theory of law — their rejection of legal rules — by briefly outlining the problems that Hart and his followers have encountered arguing for the normativity of law. Hart and the realists began from a very similar premise—that the law is fundamentally a matter of social facts. But Hart believed that this does not preclude the law’s capacity to provide reasons for action. Hart’s position has been persuasively criticized, however—most notably by Ronald Dworkin. In Parts III and IV, I will describe the two arguments that led the realists to think that the law is non-normative, the second of which has strong similarities to Dworkin’s critique of Hart. I will end the Article, in Part V, with a discussion of why the realists were inclined toward prediction theories of law. Although I agree with the philosophers that the theories should be rejected, when seen in the light of the realists’ rejection of legal rules they are more plausible than has been assumed.
