Contemporary Legal Realism

Abstract

This short chapter, which is prepared for the Encyclopedia for Law and Social Philosophy (Mortimer Sellers & Stephan Kirste eds., 2017), surveys three recent attempts to reconstruct or revive the legacy of American legal realism. The New Legal Realism is a law-centered species of empirical legal studies, which is focused on law on the ground and seeks to translate social science and synthesize its findings into law. NLR scholars are committed to constructive legal action and attuned to the changing faces of law in an increasingly globalized environment. Brian Leiter, by contrast, conceptualizes American legal realism as a naturalized jurisprudence, aimed at assisting lawyers to predict outcomes. His main substantive claim is that realists developed a robust naturalistic account, both concerning how judges decide and regarding the premise of law’s predictability for legal insiders. His main jurisprudential point is that legal realism necessarily relies on legal positivism, or more specifically: that legal realists are tacitly hard positivists. Finally, the author of this chapter argues that the real legacy of American legal realism is the realist view of law as a dynamic institution or, more precisely, a set of institutions, embodying three constitutive tensions: between power and reason, between science and craft, and between tradition and progress. What realists find most distinctive about law, in this view, is the uneasy but inevitable accommodation of these constitutive tensions.