The Realist Conception of Law

Abstract

This chapter reconstructs the realist conception of law. It attempts to revive the legal realists' rich account of law as an ongoing institution (or set of institutions) that accommodates three sets of constitutive tensions—between power and reason, science and craft, and tradition and progress—and to show how the major claims attributed to legal realism fit into this conception of law. It argues 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. Although 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.