Biographing Realist Jurisprudence

This essay reexamines realist jurisprudence through a review of two biographies of leading realists: Dalia Tsuk Mitchell's Architect of Justice: Felix Cohen and the Founding of American Legal Pluralism (2007), and Spencer Waller's Thurman Arnold: A Biography (2005). The essay argues that when biographies of legal realists are considered alongside their academic writing, a more robust jurisprudence emerges. Realist lives crystallize the intuition that the major innovation of legal realism was not, as generally assumed, its attitude toward judges and adjudication. Instead, realist jurisprudence is an institutionalist view of law with a focus on groups rather than individuals. Realist jurisprudence understands courts, legislatures, administrative agencies, and nongovernmental groups as important loci of law, lawmaking, and legal reasoning.     

Thomas Craig,Sir Martin Wright,and Sir William Blackstone: The English Discovery of Feudalism

F.W. Maitland claimed that Sir Martin Wright propagated among English lawyers the view that English law had a feudal origin and was part of a European family of law and that Wright's opinions were popularized by Blackstone. This article demonstrates that Wright's opinions on feudal law, its history, and its impact on English law owed a considerable amount to the Scottish author Thomas Craig, who, through Wright, Blackstone, and others, as well as independently, had a significant impact on English lawyers’ understanding of their legal history and in overturning theories of the ‘immemorial’ nature of the common law. The infusion of Craig's European learning on feudalism into discussion of English law helped English legal history to develop.     

Realism about the Nature of Law

Legal realism comes in two main versions, namely American legal realism and Scandinavian legal realism. In this article, I shall be concerned with the Scandinavian realists, who were naturalists and non‐cognitivists, and who maintained that conceptual analysis (in a fairly broad sense) is a central task of legal philosophers, and that such analysis must proceed in a naturalist, anti‐metaphysical spirit. Specifically, I want to consider the commitment to ontological naturalism and non‐cognitivism on the part of the Scandinavians and its implications for their view of the nature of law. I argue (i) that the Scandinavians differ from legal positivists in that they reject the idea that there are legal relations, that is, legal entities and properties, and to varying degrees defend the view that law is a matter of human behavior rather than legal norms, and (ii) that they do not and cannot accept the idea that there is a ‘world of the ought’ in Kelsen's sense. I also argue, more specifically, (iii) that the objection to non‐naturalist theories raised by the Scandinavians—that there is and can be no connection between the higher realm of norms and values (the ‘world of the ought’) and the world of time and space—is convincing, and (iv) that Kelsen's introduction of a so‐called modally indifferent substrate does nothing to undermine this objection. In addition, I argue (v) that the Scandinavians can account for the existence of legal relations that do not presuppose the existence of morally binding legal norms by embracing conventionalism about the existence of the sources of law, while pointing out that in doing so they would also be abandoning their legal realism for legal positivism. Finally, I argue (vi) that the implications for legal scholarship of the realist emphasis on human behavior instead of legal norms is not well explained by the realists and appear to amount to little more than a preference for teleological interpretation of legal norms.     

The Special Case Thesis. An Assessment of R. Alexy's Discursive Theory of Law

Legal Argumentation Theories seek mainly to develop procedures, criteria and principles which can guarantee a proper justification of legal propositions within modern legal systems. In doing this, those theories solicit in general an interconnection between practical reasoning and legal reasoning. This paper refers mainly to what seems currently to be the most elaborate theory of legal argumentation, that is R. Alexy's Theorie der juristischen Argumentation. Although the discussion is mainly concentrated on critical points of R. Alexy's theory, this paper's scope is slightly broader; it attempts to present an overall view of the current discursive theory of law. This is mainly performed through the critical examination of R. Alexy's Special Case Thesis, which seems to raise a handful of counter arguments on behalf of the other proponents of Legal Argumentation. In the first part the special case thesis is presented, as well as the main objections to it. In the second part the validity of the special case thesis is checked against K. Günther's model of practical discourse, which proves to be more elaborate in certain points, when compared with the corresponding model of R. Alexy. In the third part it is shown that the special case thesis can be accepted consistently only if it is combined with a normative theory of law that advocates the interconnection of the concept of law with the idea of right morality. It is further suggested that legal discourse has to be perceived as a special case of a broader moral-political discourse that “explains” or “justifies” (morally) the various restrictions that the positive legal systems impose on the legal discourse.     

History in the Law of the Constitution

This article addresses the diminution of historical understanding in English constitutional law by reconsidering Dicey's approach to history in his foundational work. It argues that Dicey's approach was inconsistent and unconvincing – separating a historical view of an evolving constitution from a legal view, discounting history's legal significance and nonetheless repeatedly evoking a whig history to enhance the appeal of the constitution's rules and principles. It recalls the features or deficiencies of whig history, famously characterised by Herbert Butterfield from a modern historical perspective. To Butterfield's characterisation it adds an elaboration on their constitutional significance and a neglected comparative dimension. From those features, it develops, in conclusion, methodological suggestions for a history that might yet serve constitutional legal purposes.     

The Relevance of Coercion: Some Preliminaries*

Many philosophers take the view that, while coercion is a prominent and enduring feature of legal practice, its existence does not reflect a deep, constitutive property of law and therefore coercion plays at best a very limited role in the explanation of law's nature. This view has become more or less the orthodoxy in modern jurisprudence. I argue that an interesting and plausible possible role for coercion in the explanation of law is untouched by the arguments in support of the orthodox view. Since my main purpose is to clear the ground for the alternative, I spell out the orthodox view in some detail. I then briefly sketch the alternative. Finally, I turn to Jules Coleman's discussion of the alternative.     

Employment Discrimination Law and Industrial Psychology: Social Science as Social Authority and the Co‐Production of Law and Science

This article combines Monahan and Walker's classification of social facts, social authority, and social frameworks with political‐institutionalism's view of law and science as competing institutional logics to explain how, and with what consequences, employment discrimination law and industrial‐organizational (I‐O) psychology became co‐produced. When social science is incorporated into enforcement of legislative law as social authority—rationale for judicial rule making—law's institutional logic of relying on precedent and reasoning by analogy ensures that social science will have ongoing influence on law's development. By helping set research agendas and providing new professional opportunities, institutionalized legal doctrine shapes social science knowledge. But because of differences in institutional logic, wherein legal cumulation is backward looking whereas scientific cumulation is forward looking, co‐production of law and science may produce institutional mismatch between legal doctrine and scientific knowledge.     

Karl Olivecrona's Legal Philosophy. A Critical Appraisal*

I argue in this article (i) that Karl Olivecrona's legal philosophy, especially the critique of the view that law has binding force, the analysis of the concept and function of a legal rule, and the idea that law is a matter of organized force, is a significant contribution to twentieth century legal philosophy. I also argue (ii) that Olivecrona fails to substantiate some of his most important empirical claims, and (iii) that the distinction espoused by Olivecrona between the truth and the correctness of legal statements is problematic but not needed in Olivecrona's legal philosophy.     

IT and Law,and Law Schools

If 'computing and law' as a discipline is to push forward and develop, it will do so best within the context of the law school rather than as a joint enterprise between law and other disciplines. It is in the law school that the understanding of the nature of law is at its height. Yet there are problems here-law schools have a strained relationship with technology and their concept of the breadth of 'legal scholarship' can be limited by conventional (or ideologically-biased) views of law and an undergraduate-oriented view of the law school's purpose. There are also problems arising from the nature of communications between lawyers and computer scientists. In this article, I highlight these problems and also argue for a more developed and extended view of legal scholarship which will be able to incorporate study and research of the impact of the computer upon legal society as well as the legal control of the unwanted elements arising from these new technologies. Most writings on IT and the law school concentrate upon its use as an educational tool. My interest here is not so much in this side of things, but in the research culture of the law school. Whilst there is sometimes a view that the linkage of law school and IT is purely related to the use of technology in legal education, the remit is wider and includes the understanding of the link between substantive law and the context of the new computerized world and also the impact of the computer in the practice of law. This latter aspect is becoming increasingly important with the Woolf reforms and computerization of the procedural elements of law, but also in substantive law: for example, administrative systems are becoming more and more mediated by technology, and administrative law must be reviewed and re-worked in this context.     

The Rule of Law and the Rule of Empire: A.V. Dicey in Imperial Context

The idea of the rule of law, more ubiquitous globally today than ever before, owes a lasting debt to the work of Victorian legal theorist A. V. Dicey. But for all of Dicey's influence, little attention has been paid to the imperial entanglements of his thought, including on the rule of law. This article seeks to bring the imperial dimensions of Dicey's thinking about the rule of law into view. On Dicey's account, the rule of law represented a distinctive English civilisational achievement, one that furnished a liberal justification for British imperialism. And yet Dicey was forced to acknowledge that imperial rule at times required arbitrariness and formal inequality at odds with the rule of law. At a moment when the rule of law has once more come to license all sorts of transnational interventions by globally powerful political actors, Dicey's preoccupations and ambivalences are in many ways our own.     

卢埃林现实主义法理学思想

以卡尔.卢埃林关于现实主义法理学及其研究方法与立场、怀疑规则的确定性、强调对行为与法律实施的研究、区分"实然"与"应然"以及法的形成与功能等方面的论述与阐释为依据,可以较为全面地介绍并评价这位美国现实主义法学运动的著名代表人物的法理学思想,同时可以澄清与纠正各种流行的关于卢埃林的误解和曲解。     

Neil MacCormick's Second Thoughts on Legal Reasoning and Legal Theory. A Defence of the Original View

This paper offers a diachronic reconstruction of MacCormick's theory of law and legal argumentation: In particular, two related points will be highlighted in which the difference between the perspective upheld in Legal Reasoning and Legal Theory and the later writings is particularly marked. The first point concerns MacCormick's gradual break with legal positivism, and more specifically the thesis that the implicit pretension to justice of law proves legal positivism false in all its different versions. The second point concerns MacCormick's acceptance of the one‐right‐answer thesis and the consequent thinning of the differences between MacCormick's theory of legal reasoning and that of Ronald Dworkin and of Robert Alexy. The intent, however, is not only to describe this change in MacCormick's thought, but also to attempt a defence of the original view that we find in Legal Reasoning and Legal Theory.     

Does the Unconstrained Legal Actor Exist?

Abstract. The unconstrained legal actor, typically a judge, is a central character in modern jurisprudence. He is feared by legal formalists, legal positivists, and Ronald Dworkin alike. He is lauded by some legal realist and critical legal studies theorists. Stanley Fish says that all of this theorising is pointless because the unconstrained legal actor cannot exist. My paper evaluates Fish's arguments for this surprising position.     

The Paradox of American Critical Legalism

Duncan Kennedy's essay is a reprint from his recently published book. We hope to draw attention to Kennedy's work among students of European integration since we believe his analysis to be relevant both to the specific debate on the impact of European integration upon private law and to comparative legal study in general. European legal scholarship has only recently begun to examine the problems of private legal integration. The late appearance of private law in the integration arena is due to a primarily instrumental understanding and strategic use of law in the European market-building project: only once legal ‘barriers to trade’ were eliminated and national regulatory law replaced by Europeanised norms, did the degree to which the core institutions of ’private‘ law had been (indirectly) affected by the integrationist logic become apparent. Comparative legal research, however, has benefited from this awakening of interest. European Commission projects have widened the scope of and intensified comparative studies in Europe. Equally, experience gained from the ‘Integration Through (Public) Law’ project has led to a new private legal debate on the impact of national traditions, the concept of legal cultures and the social functions of private law. Accordingly, whilst Duncan Kennedy's deliberations on the history of American legal thought and the differences between American and European legal cultures are generally to be commended for their sensitive treatment of the specificities of the civil law system and the common law heritage, they are equally of particular topical concern since in addition to highlighting America's ‘utter faith and utter distrust in law,’ they also investigate the fundamentally different approaches adopted towards ‘the project law’ within each of the member states of the EU. If European private lawyers are to come to terms with the problems of integration and convergence, they must first tackle these deep-seated divergences between their own national legal cultures.     

A Cosmopolitan Philosophy of International Law? A Realist Approach

Analyzing different works and in particular Habermas' reflection on Kant, the author reconstructs, first, his approach to international law and his political and legal cosmopolitanism. Second, he presents some critical observations on Habermas' cosmopolitanism in the context of his more general discursive theory of law and state. In this perspective, he discusses the problems of peace and of the role of the United Nations, the strategy of protection of human rights, and the question of world citizenship. He argues that Habermas' cosmopolitanism is a radicalization of Kantian tradition based on a centralization of international power and a cosmopolitan law. Finally, he develops realist arguments in favour of a non-globalistic conception of international law. 1 Abstract by Giorgio Bongiovanni.
     

The Times of Law

In this essay, I situate Kunal Parker's Common Law, History, and Democracy in America, 1790–1900, within a broader set of intellectual currents engaged with questions of time and temporality. Although Parker's book centers on the common law and history and develops specific conceptions of time, in so doing, he invites legal historians and legal scholars to ruminate on the times of law, particularly the temporal relations that law has with itself. Placing Parker in conversation with Henri Bergson and the recent Bergsonian revival in critical theory, I suggest that law has a duration, a formulation that opens other itineraries to consider the dynamic times of law.     

Between the Law: The Unmaking of Empire and Law's Imperial Amnesia

Asian victims of Japanese imperialism have filed lawsuits against the Japanese government and corporations since the 1990s, which became prime sites for redress decades after Japan's defeat in World War II. As this ethnography demonstrates, this process paradoxically exposes a legal lacuna within this emergent transnational legal space, with plaintiffs effectively caught between the law, instead of standing before the law. Exploring this absence of law, I map out a post‐imperial legal space, created through the erasure of imperial and colonial subjects in the legal framework after empire. Between the law is an optic that makes visible uneven legal terrains that embody temporal and spatial disjuncture, rupture, and asymmetry. The role of law in post‐imperial transitions remains underexplored in literatures on transnational law, legal imperialism, postcolonialism, and transitional justice. I demonstrate how, at the intersection of law and economy, post‐imperial reckoning is emerging as a new legal frontier, putting at stake law's imperial amnesia.     

Can Theories of Meaning and Reference Solve the Problem of Legal Determinacy?

Abstract. A number of important legal theorists have recently argued for metaphysically realist approaches to legal determinacy grounded in particular semantic theories or theories of reference, in particular views of meaning and reference based on the works of Putnam and Kripke. The basic position of these theorists is that questions of legal interpretation and legal determinacy be approached through semantic meaning. However, the role of authority (in the form of lawmaker choice) in law in general and democratic systems in particular require that these realist “solutions” to the problem of legal determinacy be rejected or at least significantly revised.     

The Fluid Jurisprudence of Israel's Emergency Powers: Legal Patchwork as a Governing Norm

Israel's long‐standing state of emergency has had considerable bearing on the state's governance. Less known, but equally important, is the fact that Israel's legal system features several overlapping and incoherent emergency legal mechanisms that exist side by side. This article demonstrates that Israel's ever‐shifting body of emergency law has been used to suit its governing authorities’ political ends. A chief goal has been to create flexibility in the application of law in order to systematically discriminate against Palestinians while maintaining a degree of legitimacy as a government by law. With these various emergency legal mechanisms available, Israel's governing officials can extend the authorities of discrete emergency regulations by mixing and matching laws or by moving freely from one legal mechanism to the next to serve desired ends. This article argues further that what may have started as a pragmatic solution quickly became programmatic and concerted. Thus, contrary to the conception that Israel's convoluted emergency jurisprudence is the accidental outcome of trying times, Israel's complex emergency jurisprudence is in fact a governing tool. This reality compels us to consider new analytical frameworks in which a state of emergency is an enduring condition. To this end, this article draws on the work of colonial law scholars. By analyzing jurisdictional complexity in contexts where emergency is dominant, these studies explain the political motivation for maintaining structured ambiguity.     

Law's Strange Allure: The Power of Legal Lore beyond the Law-Politics Divide

American political culture is both seduced and repulsed by legal power, and this essay reviews Gordon Silverstein's contribution to understanding the causes and consequences of “law's allure.” Using interbranch analysis, Silverstein argues that law is dangerously alluring as a political shortcut, but ultimately he concludes that law offers no exit from “normal politics” and the hard work of “changing minds.” This essay suggests that Silverstein's framework—his dyadic focus on courts and Congress, constructive and deconstructive patterns, legal formality and normal politics—strips law from its animating context of interests, inequality, and ideology. Without consideration of these larger forces of power, Silverstein's framework misplaces law's ability to “change minds” in perverse and unexpected ways.