Some Realism for Hard Cases

Abstract

This paper presents the main features of a model of legal dogmatics that aims to give solutions for hard cases. It does not present a history of legal thought. Rather it attempts to provide a conceptual reconstruction of normative intuitions based on the realist tradition–including realists, and precursors of and heirs to those realists–in the light of ethical consequentialism. To that end I propose four different types of arguments. First, I present a set of criticisms that advocates of the technological model of dogmatics direct against argumentativist and formalistic dogmatics, that seem to assume consequentialist theses. Second, I lay out a series of quotes in which the defenders of the technological model refer to the best consequences as an argument about the rightness of solutions for hard cases. Third, I point out that ethical consequentialism offers the best way to understand some of the meta-ethical claims of sceptical type put forth by these authors. Fourth, I claim that, although there is no conceptual connection between reductionist empiricism and consequentialist ethics, if the former is adopted it would be more consistent to adopt the latter as well. Finally, some tasks that the technological dogmatics should develop are presented.