The Realist Conception of Law

Abstract

A well known truism states that the realist conception of law is false or nonexistent. Those who view the infamous predictive theory of law as synonymous with the legal realist conception of law point to its well-known deficiencies. Others, who focus on the realists’ suspicion of conceptual analysis, hold that legal realism fails to offer any interesting insights into the concept of law. Almost as commonplace is the claim that the reason “we are all realists now” is that legal realism represented a crude revolt against formalism, assembling an incoherent set of rudimentary ideas. Once these various claims were developed by its later heirs, legal realism inevitably diverged into a set of distinct, sharp, and oftentimes conflicting perspectives on law. This Article contests both of these cliches. It revives the legal realists’ rich account of law as a going institution accommodating three sets of constitutive tensions— between power and reason, science and craft, and tradition and progress—and demonstrates how the major claims attributed to legal realism fit into this conception of law. Finally, this Article claims that the contemporary heirs of legal realism have each focused on one element of a single constitutive tension rather than refining, as conventional wisdom might hold, a confused collection of rudimentary claims. While contemporary accounts of law enhance our understanding of its characteristics, only the realist conception captures law’s most distinctive feature: the uncomfortable, but inevitable, accommodation of these constitutive tensions. THE REALIST CONCEPTION OF LAW