Some Realism about Legislation

Abstract

The historical movements we are used to pigeonhole as ‘Legal Realism’ did not give pride of place to legislation in their investigations about the law, being rather interested, either in dealing with adjudication and case-law (American Realists), or in working out a general theory of legal norms and legal sources (Scandinavian Realists). Nonetheless, if considered as a philosophical view maintained also by legal philosophers other than strict ‘historical Realists’ (like, e.g., Jeremy Bentham, Hans Kelsen, and ‘new’ Continental analytical jurists), Legal Realism may be credited with a full-fledged theory of legislation. Such a theory will be accounted for in the present essay, by pointing out and explain what may be considered its basic claims, i.e.: (i) the will-of-the-text thesis; (ii) the norm-formulation thesis; (iii) the no one-to-one correspondence thesis; (iv) the structural indeterminacy thesis; (v) the structural mercy thesis.