American Legal Realism Research Articles

Genesis, nature, and specificity of application of realistic approach in the history of American legal thought

The subject of the study is the American legal thought of the period of its establishment and theoretical conceptualization, which was closely related to such characteristic as the realistic approach towards law that stood apart in the sociological and realistic directions. The attempts of interpreting the views of this regional intellectual group of legal experts as the classical version of legal realism are subjected to critical reevaluation. For assessing the specificity and content of the direction of legal thought referred to as “American legal realism”, the author explores the philosophical-methodological grounds of the cognition of law and interpretation of its concepts in the context of the aforementioned trend, separate substantial aspects of the genesis of realistic approach towards legal problematic in the history of American legal thought, as well as specificity of such characteristics of the court function as “judicial legislation” in through the prism of “legal realism”.  The novelty of this research consists in detailed clarification of certain essential aspects of the genesis and evolution of American legal thought. Emphasis is placed on the poorly studied aspects of the criticism of legal realism in American literature. The latter is used rarely or fragmentally in the Russian research dedicated to the application of realistic approach towards law in the United States, including correlations with some European direction of “realistic” jurisprudence. Examination of philosophical-methodological framework of American legal realism allows revealing significant inaccuracies and distortions in classification of this trend as realistic, which in fact is rather of nominalistic nature. Realistic in relation to this trend of American legal thought is applicable only to separate characteristics of the sociological study of justice.

The New Formalism in Private Law

Private law scholarship is experiencing a reawakening in the United States with the rise of the New Private Law. The New Private Law is an intellectual movement characterized by a confluence of different non-legal methodologies and diverse normative commitments. Its eclecticism gives it a perplexing, if not paradoxical, appearance, and the ties that bind those of us allied to it might seem tenuous. New Private Lawyers have emphasized our common commitment to the scholarly interest and practical importance held by legal concepts; a belief that private law ought to be analyzed (in part) from an internal point of view; and a conviction that functionalist and conceptual analyses of private law doctrines, procedures and institutions are, or can be, complementary. We are also joined in criticism of aspects of American legal realism and in lament over some of its continuing legacies in private law. However, New Private Law scholars have yet to articulate a scholarly methodology that might define, motivate, and differentiate our work. This Article fills that gap. In it, I argue that the New Private Law is rooted in a shared – if implicit – new formalist methodology and provide the first programmatic explanation of it. The Article does several things. It provides a clear statement of methodological tenets of the new formalism. It relates these to wider developments in general jurisprudence, with particular attention to scholarship on law and practical reason. It explains the sense in which the new formalism is novel, especially relative to older varieties of legal formalism. It distances the new formalism from foolish and implausible claims prominent in pejorative renderings of legal formalism. It shows how the new formalism is reflected in New Private Law scholarship. And it explains how a clear grasp of new formalist methodology enables reconciliation of the otherwise baffling eclecticism in the New Private Law while promising new and fruitful avenues for its future development.

Hermann Kantorowicz and free law school: European roots of American legal realism

Hermann Kantorowicz and free law school: European roots of American legal realism

Educating American Lawyers: The New Haven School’s Jurisprudence of Personal Character

Abstract Using previously unexploited archival sources and unpublished teaching materials, this article rereads Harold Lasswell and Myres McDougal’s earliest 1943 statement of policy-oriented jurisprudence – what would become known as the ‘New Haven School’ – and examines their wartime careers in government and academia. It breaks with widely held current understandings of the New Haven School. First, Lasswell and McDougal’s work is re-periodized. Instead of a reactionary answer lawyers offered to international relations realists in the 1940s, I argue that policy-oriented jurisprudence was a product of interwar insecurities and the rising culture of American modernism from the 1920s. Second, notwithstanding frequent associations of the jurisprudence with interventionist, anti-communist American foreign policy during the Cold War, the article emphasizes Lasswell and McDougal’s engagement with progressive politics of the early 20th century – New Deal social planning and redistribution; psychoanalytically inspired social critique; Marxism and socialism. Third, I argue that the school’s primary intellectual origins are to be found not in American legal realism or positivist social science, but in philosophical pragmatism and psychoanalysis.

European New Legal Realism: Towards a Basic Science of Law

This chapter outline the position of European New Legal Realism (ENLR) and compares it to variations of American Legal Realism (ALR), new and old. We argue that the fundamental difference between the ENLR and ALR is its turn – or return – to epistemology. Europe legal realism has been – and, in our view, is – largely concerned with devising the foundations of a scientific study of law, one that can make law intelligible on scientific grounds. It is in search of the premises of law as a basic science – and a science on par with all other forms of academic endeavour, including the natural sciences. To make this argument, we first outlines the intellectual roadmap of our position before turning to questions of the epistemology of legal science. We draw on the unique insights offered by a combination of Weberian interpretive sociology of law and Scandinavian realism as propounded by Alf Ross. We draw out their strikingly congenial conceptions of legal validity as a genuinely empirical object of study, and how it differs from American legal realism and its reliance on pragmatism. Against this background, in part IV, we then link these precursors of European legal realism to the program for a rigorous science of law laid out by Pierre Bourdieu with a view to the particular challenges of studying law. We argue that to make law intelligible as an object of legal realist inquiry, one needs to devise an approach that, at one and the same time, takes seriously both the production of law and those precise – yet changing – social conditions, which makes that production possible.

Transatlantic Divisions in Methods of Inquiry About Law: What it Means for International Law

This is a chapter for the Handbook on Research Methods in International Law edited by Rossana Deplano & Nicholas Tsagourias and to be published by Edward Elgar in 2021. It is based on a presentation at a workshop at the University of Leicester on “The Neglected Methodologies of International Law: Empirical, Socio-Legal and Comparative,” on January 31, 2018. The chapter explores a question that many have voiced but which is difficult to answer: why do differences persist in approaches to research and scholarship about international law, as between the United States and Europe, and even within the Anglo-American tradition as between British and American traditions? There are likely many reasons and this is not a study of “causes.” It is an exercise in interpretation. It locates the differences in traditions of inquiry about the law in general and international law more particularly in two frames, one based in the rise of the analytical and empirical sciences in the United States and the other in the rise of the critical tradition in the wake of American Legal Realism. The chapter proceeds on an assumption that to understand how international legal scholars perceive their methods is to be explored from the perspective of the history of the social sciences and the humanities generally. It places the current work of international legal scholars in the context in which they operate within the broader university and community of scientists and humanists.

On the nature of American classical legal realism

The subject of this research is one of the trends in the American legal thought – legal realism in the context of clarification of its specificity, key theoretical-methodological perspectives formed in the classical period, represented by the founders of this direction O. W. Holmes, R. Pound and K. Llewellyn. Studying the heritage of the classical American realists is important for the purpose of elucidation of their views, since many aspects remain unclear or simplified, and interpreted in form of patterns and schemes; as well as due to the fact that in the modern American legal science and well beyond it, more popularity multiple variations of “clarification” of realism in form of “neo-“ versions, and realism itself is declared the symbol of modern age. Main attention is given to the question of overcoming simplifications with regards to legal views of the classical American realists. The scientific novelty of this work consists in elucidation of the perceptions of the nature and specificity of legal views of the representatives of classical American legal realism. This is primarily associated with the fact that orientation towards demythologization of conceptualism in the works of legal realists of the period of establishment of this trend is erroneously identified with the rejection of moral arguments in substantiation of law, which to a large extent was justified by the desire of some researchers to substantiate the meaning of radical pragmatism as a philosophical foundation of the modernized legal theory. Secondly, unjustified broadening of the concept of legal realism and its identification with naturalization of conceptual apparatus of law is one of the factors that led to multiple simplifications and distortions of the methodological importance of the fundamental principles of legal realism.

Electing Economics: Election Law's Efficiency-Convergence Dilemma

We are facing a moment of unique reflection in American democracy. Data suggests that marginalized communities feel persistently ignored by political actors—on a bipartisan basis. The scale of wealth inequality is soaring to unprecedented heights. Domestic indifference to foreign interference in our elections has poisoned public confidence in the political process. Mass reckonings with institutionalized racism and police violence have rocked major cities, facing deep and violent resistance from the President and the federal government. A global pandemic disproportionately devastated Black and Brown communities, and the federal government’s response prioritized economic liberty over health and safety. Americans are reconsidering the nature of our relationship to the federal government, and the pressure for reform may now exceed any moment since the New Deal. In this setting, Iowa’s dramatic failure to efficiently administer the Democratic Presidential Caucus hardly seems worthy of a footnote in the history of 2020. Yet, at the time, it became a national story. Iowa’s failure to administer an efficient election was new—but election law’s marriage to economic efficiency is much older. Understanding the depth of efficiency’s roots in the law of democracy requires turning back to that same New Deal era. The conflict between the American Legal Realists and the laissez faire Lochnerism of the Supreme Court laid the groundwork for efficiency’s lasting role in law—and for the century of criticism that sprung up to contest it. Efficiency—and specifically, the conceptions of efficiency proffered by Chicago School Law and Economics and Virginia School Public Choice Theory—emerged victorious from those contests. But, we are facing a moment of unique reflection, and in such a moment, an opportunity arises. By looking back through efficiency’s rise, we can chart a course forward. This article offers a framework with which to do so: the efficiency-convergence dilemma. Part I builds the efficiency-convergence, outlining the intellectual history of efficiency’s role in election law. Part II builds the dilemma, highlighting critical legal theory and heterodox economics traditions that contour the normative concerns with the efficiency-convergence. Part III presents the framework. I develop a typology of efficiency arguments within election law, derived from novel primary source analysis of the legislative history for the Voting Rights Act and the National Voter Registration Act, along with case law and scholarship across election law. I theorize that this typology demonstrates an efficiency-convergence dilemma, functioning to institutionalize racial subordination as a neutral principle undergirding legal thought in the law of democracy. I offer a series of critiques for this efficiency-convergence, built from the critical theories discussed. Finally, Part IV offers two normative implications of the efficiency convergence. The first is to look outside the law, developing an operationalized definition of equity based on similar research in public health and public policy. The second is to highlight election law scholarship that bucks the efficiency convergence, charting a path forward. I present one such path: reimagining the right to vote as a constructive right implemented through constitutional conventions and norms and protected as an instrumental right.

Explaining Judicial Populism in Hungary – a Legal Realist Approach

In Hungary, some judges tend to decide cases in a way they think is popular among ordinary people. I call this phenomenon “judicial populism”. First, by analysing three cases I argue that the plausible theoretical framework of explanation of populist tendencies in Hungarian adjudication is the American Legal Realism. Then I examine the characteristics and possible explanation of judicial populism and its relation with the political populism.

American Legal Realism in Dispute Resolution. Alternative Dispute Resolution as a “Realist” Project

American Legal Realism is alive and well. As a normative (and not only descriptive) theory, it has shaped the legal world we are living in and has influenced current legal practices at a global level. This article looks at the influence Realists’ ideas (and specifically Charles Edward Clark’s ones) have had ‘unconsciously’ over the phenomenon of the privatisation of civil justice and the Alternative Dispute Resolution revolution. It is suggested that many key concepts of Pragmatism and American Legal Realism form part of today’s repertoire of Alternative Dispute Resolution supporters and that the privatisation of civil justice is to be understood as an “unintended” Realist project, in the sense that it is inspired by, and reflects, a Realist view about law, conflict-resolution and justice without openly recognizing it.

Abstract Clauses and the Descriptive Limits of Originalism: Embracing Legal Realism

There seems to be an intuitive distinction between the concrete and abstract clauses of the U.S. Constitution: If concrete clauses–such as the Article II’s requirement that the U.S. President be at least thirty-five years of age–appear fairly uncontroversial as to their meaning and reference, abstract clauses–such as the Eighth Amendment’s prohibition of “cruel and unusual punishments”–show a more vague and debatable content. In the Article, I argue that the peculiar modality of legal change abstract clauses undergo thwarts a complete understanding of the U.S. Constitution in originalist terms. I take up Dworkin’s “moral reading” originalism and Bork’s “orthodox” one as two archetypal reconstructions of the framers’ intent in regard to abstract clauses. Despite substantial differences, both a Borkean and Dworkinian originalism share a commitment to a formal understanding of abstract clauses. For different reasons, however, they both fail in providing a sound account of abstract clauses’ change over time: If Dworkin’s account seems at variance with the rationale of a rigid constitution, a Borkean conception of abstract clauses, although interpretatively sound, appears at odds with reality. From the failure of the two reconstructions, I deduce several conclusions. First, that the best way to make sense of the abstract clauses’ change is to give up any formalist account thereof: Abstract clauses give rise to a plain instance of informal legal change, the reason for that possibly being that formalism is in competition with other human values–namely, the desirability of the outcomes. In that abstract clauses do not comport with formalism, an originalist account thereof is not descriptively accurate. But if abstract clauses do not abide by formal legal reasoning, the lawyer might wonder how to deal with them–especially, when faced in court. I contend that philosophy of language could hardly be of any help, despite the fact that abstract clauses recall the vagaries in reference “indexicals” bring about in analytic philosophy. Conversely, the employment of disciplines that study human behavior in different normative domains might prove decisive. If these reflections wound up agreeable, the validity of the insights of American legal realism would be reaffirmed. On the one hand, constitutional law is, to some extent, “legally indeterminate”; on the other, empirical social sciences–not armchair philosophy–are our best ally in addressing the indeterminacy.

WHAT IS A REALIST THEORY OF LAW?

This essay offers a programmatic statement for a realist theory of law. Although I have been influenced by (and written about) the work of earlier American, Scandinavian, Italian and other legal realists, this is not an essay about what others have thought. This is an essay about what I take realism about law to mean and what its theoretical commitments are; I shall use other realists to sometimes illustrate the distinctive positions of a realist theory of law, but will make clear where I depart from them. A realist theory of law involves both a “realist” and a “naturalistic” perspective on law. Let me explain how I understand these perspectives.

LEGAL REALISM AS DIRECTION OF SOCIOLOGICAL JURISPRUDENCE

The article is devoted to the disclosure of features of legal realism as a special direction of sociological jurisprudence. The historical prerequisites for the formation of American legal realism are considered. It was emphasized that legal realism emerged as a reaction to the formal principle of adjudication, which insisted on the need for strict adherence to case law. The leader of American legal formalism, K. Langdell, viewed law as a combination of legal concepts derived by inductively generalizing previous court decisions. It has been proven that one of the first to disagree with this approach was judges of U.S. Supreme Court Justice O. Holmes and B. Cardozo. A comparative analysis of the views of K. Llewellyn and J. Frank, who are recognized leaders of the movement of legal realism, was done. It was established that K. Llewellyn considered that law is not only the judge decide but also any other persons with powers over the disputes. He paid particular attention to the study of the activities of the High Courts and emphasized the need to use the so-called Grand-style in the judicial decision-making process, which allows the law to be adapted to the real circumstances of the case and to contemporary social change. In contrast, J. Frank insisted that the judge was the creator of the law, and that the courts of first instance played a major role in the administration of justice. In his opinion, one of the decisive factors in the administration of justice is the personality of the judge, his individual and psychological qualities. It has been found that despite the lack of unity of positions of the supporters of legal realism, they are united by the underestimation of positive law as a factor of certainty and stability of legal relations, an instrumental approach to law and excessive psychologization of the judicial process. It is concluded that despite the significant shortcomings inherent in legal realism, this line of legal thought has made a significant impact on the general theory and philosophy of law through the combination of methods of sociological and psychological study of legal reality and the disclosure of internal mechanisms of formation judicial decisions.

New legal realism

The subject of the study is one of the actively developing trends in Western legal thought over the past two decades, especially American, which is called "new legal realism" and positions itself both as a special variant of the "organizational paradigm of interdisciplinary research" and as a progressive empirical doctrine of law that overcomes the shortcomings of "traditional approaches to law".. The program of this direction is based on the idea of the possibility of effectively solving the problems of classical American legal realism by updating, first of all, the methodology of legal research. The study critically analyzes not only the content of the main ideas of the "new legal realists", but also an attempt to articulate the well-known developments of their predecessors, especially European ones, as a "new" direction in legal science. The methodology of the research is based on such methods of working with the ideas of foreign authors as the study of original texts, program statements (materials of conferences, symposiums and speeches), tracing the connection of past and modern teachings, analysis of involvement in the discussion of traditional issues and topics of legal issues. The conclusions of the essentially critical analysis of the content of the ideas of "new legal realism" are as follows: a narrowly focused behavioristic analysis of judicial activity with the pathos of the scale of the tasks being solved creates a paradox of the absence of a problem of law (even in the sense of classical realists) in the "new" legal doctrine; the methodology of "new realists" in the form of interdisciplinary practices and orientation to the analysis of "big arrays of data" is not something new, remaining within the framework of sociological approaches to law; manipulation of traditional legal issues leads to the reproduction and distortion of the ideas of predecessors.

르웰린(Karl Llewellyn)의 법현실주의(American Legal Realism) 인식과 그 특성

미국 법현실주의(American Legal Realism)를 조망하기 위해 그 연구대상으로 학자와 인물을 선정하려면, 필연적으로 르웰린(Karl Llewellyn)을 우선적으로 꼽아야 할 것이다. 르웰린은 미국에서 법현실주의 운동이 막 전개되고 발전할 무렵 가장 활발하게 활동했던 학자였기 때문이다. 그는 1930년과 1931년 “현실주의 법학, 그 다음 단계”(A Realistic Jurisprudence – The Next Step, 1930)와 “현실주의에 대한 어떤 현실주의”(Some Realism about Realism – Responding to Dean Pound, 1931) 논문을 통해 파운드(Roscoe Pound)와 법현실주의에 대해 논쟁하였다. 이들 논문에서 르웰린은 ‘행동’(Behavior) 중심 접근법을 법학방법론에 이용할 것을 주장하였다. 르웰린과 파운드의 논쟁은 그들이 법의 이해에 대해 가지고 있었던 공통점과 차이점에서 이후 미국 법현실주의와 사회학적 법리학(Socialized Jurisprudence)의 분화가 촉진된 계기를 찾을 수 있다는 점에서 의미가 있다. 르웰린은 법을 찾는 ‘과정’(Process)을 중시하였고 법인류학에 관심을 가졌으며 사회제도(Institution)으로서의 법의 형성과정을 연구하는데 주목하였다. 이 지점에서 그의 사상과 풀러(Lon Fuller)의 자연법적 성향이 비슷한 측면이 있다는 점이 지적된다. 특히 르웰린은 다른 법현실주의자들이 법학에 대한 사회과학적 연구의 ‘경험적’ 축적을 강조한 것과는 달리 법학에서 ‘통계’와 함께 직관(Intuition)에 의존한 서정적 서술을 혼용하는 모순적 행태를 보이기도 했다. 그러므로 르웰린만을 중심으로 하여 법현실주의 운동의 전반을 이해하는 데에는 한계가 있다. 이러한 측면이 법현실주의 운동의 복합적이고 정의하기 어려운 특성을 보여준다. 법현실주의 운동은 결과적으로는 철학적으로 경험론(Empiricism)의 연장선상에 위치시켜야 할 것이다. 또한 법현실주의자들이 중시한 경험적(empricial)이라는 용어는 정말로 ‘경험’을 해야만 알 수 있다는 뜻이 아니라 과학적이고 객관적이며 구체적이라는 뜻으로 바꾸어 이해되어야 할 것으로 보인다.

Will There Be a Science of Law in the Twenty-First Century?

The skepticism of the American Legal Realists and their heirs threatens to make a politically neutral science of law impossible and thus to undermine the liberal polity which needs such a science. Ronald Dworkin attempts to refute the skeptics and defend both legal theory and liberalism. However, the author points out, Dworkin and liberalism are themselves skeptics when it comes to moral principles, and, therefore, they cannot wholly escape from similar skepticism with regard to legal principles. Both Anglo-American and Continental legal history are examined in the course of these arguments.

Privacy Law’s Indeterminacy

Abstract Fools rush in. ALEXANDER POPE, AN ESSAY ON CRITICISM (London, 1711). The full quotation is, “For Fools rush in where Angels fear to tread.” Id. at 66. She who hesitates is lost. Adaptation of the line, “The woman that deliberates is lost.” JOSEPH ADDISON, CATO: A TRAGEDY, AND SELECTED ESSAYS 30 (2004). See also OLIVER WENDALL HOLMES, SR., THE AUTOCRAT AT THE BREAKFAST TABLE 29 (1858) (“The woman who ‘calculates’ is lost.”). American legal realism numbers among the most important theoretical contributions of legal academia to date. Given the movement’s influence, as well as the common centrality of certain key figures, it is surprising that privacy scholarship in the United States has paid next to no attention to the movement. This inattention is unfortunate for several reasons, including that privacy law furnishes rich examples of the indeterminacy thesis — a key concept of American legal realism — and because the interdisciplinary efforts of privacy scholars to explore extra-legal influences on privacy law arguably further the plot of legal realism itself.

La plenitud hermética del Derecho: ¿mito o realidad? Un acercamiento a la discusión sobre si los jueces crean Derecho

El objetivo del presente trabajo es definir y caracterizar la plenitud hermética del Derecho brindando una aproximación desde sus orígenes. Se estudia este principio partiendo delos principales modelos de la función judicial (el formalismo jurídico, el realismo jurídico norteamericano, el positivismo de Kelsen, la discreción judicial de Hart y el modelo de la única respuesta correcta de Dworkin), concluyéndose, que este puede tener al menos dos significados: uno absoluto y uno relativo, siendo más aceptable en la actualidad el segundo, dada la importancia que han adquirido, en general, los principios en la aplicación del Derecho.

Legal Realist Innovation in the Wisconsin Law School Curriculum 1950-1970: Four Influential Introductory Courses

This paper is about four courses developed by faculty of the Wisconsin Law School from about 1950-1970 that reflected the law-in-action instructional goals of American legal realism: Legal history by Willard Hurst; Criminal Justice Administration by Frank Remington, Herman Goldstein and colleagues; The Wisconsin contracts course by Stewart Macaulay, Bill Whitford and colleagues; Legal Process by Willard Hurst, Lloyd Garrison, Carl Auerbach and colleagues. Eight themes in the courses are discussed: 1. Major flaws in the legal reasoning of appellate decisions (e.g., as internally incoherent, un-predictive of later results, politically biased under the guise of formal reasoning) 2, The importance of practical remedies over theoretical rights 3. The importance of legal agencies and law practice beyond appellate and other court decisions (e.g., legislation, administrative law) 4. The importance and impact of discretionary decisions of lower level public officials (for lawyers and citizens) 5, How private actors react to law and influence outcomes (and the role of lawyers in advising them) 6. Growth of legal policies over time in relationship to the wider society & economy (legal history) 7. The gap between social needs and justice and real legal outcomes and workable legal reforms (political progressivism) 8. The importance of empirical research on law, interdisciplinary research and social scientists on law school faculties or in collaboration with law faculty members.

Why Legal Positivism (Again)?

This was a keynote address at the annual meeting of the Australasian Society of Legal Philosophy at the University of Sydney in 2013. (It is a much expanded version of some brief remarks presented in 2010.) Why is legal positivism the dominant view among legal philosophers? address begins with a somewhat lengthy methodological preamble, offering reasons to resist the extravagant metaphysical inflation of the purported theoretical virtues of positivism in some recent jurisprudential writing by Dickson and Shapiro, among others. Artifacts do not have essential attributes, not even functional ones. (Leslie Green's partial resistance to my metaphysical deflation in his recent The Morality in Law is shown to depend on some confusions about the status of the claim that law is an artifact.) I then suggest that legal positivism has three theoretical virtues counting in its favor. First, if we take seriously the benchmark for theoretical adequacy that Hart gave for his theory - namely, that it capture what the ordinary educated person familiar with a modern municipal legal system understands by the concept of law - that positivism does the best job of accounting for this ordinary understanding. (Particular attention is drawn to Raz's original arguments for legal positivism of this form, as opposed to his perhaps better-known, if more controversial, argument from the nature of authority.) Second, the positivist account of law is the one deployed fruitfully in all the empirical social sciences. Third, the positivist theory does not involve incredible or controversial metaphysical assumptions. last two theoretical considerations are acknowledged to presuppose naturalism, but I suggest that doing so is unavoidable. Are there any competitors to the positivist theory so understood? most sophisticated version of natural law theory, that of John Finnis, has conceded the main points in dispute to the legal positivists, and fails to articulate a successful argument against descriptive jurisprudence. A plausible theoretical reconstruction of the jurisprudence of American Legal Realism shows it to presuppose the positivist view. Scandinavian Legal Realism is shown to reject Hart's benchmark of theoretical adequacy (the first point, above), and so to be undertaking a wholly different project, one in no competition with Hart's. Dworkin's theory, by contrast, fails along the the three dimensions of theoretical adequacy along which legal positivism succeeds. paper concludes that the appeal of Dworkin's theory to constitutional lawyers in the Anglophone world and elsewhere is due entirely to the (correct) perception that his theory makes moral considerations relevant to the resolution of momentous constitutional questions; unfortunately, nothing in the positivist theories of Hart and Raz denies the relevance of moral considerations to such questions. I end with some sociological reflections on jurisprudence that may partly explain the continued resistance to legal positivism, contrasting my own sociological speculations with Dworkin's final and embarrassing ad hominem arguments against legal positivism.