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.     

Leiter on the Legal Realists

In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past. The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed. The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist theory. Leiter’s reading is vulnerable, because he fails to discuss in detail those passages from the realists that inspired past interpretations. My goal is to see how Leiter’s reading fares when these passages are considered. I argue that Leiter is right that the realists’ indeterminacy thesis has only a local scope. Those passages that appear to claim that the law is globally indeterminate actually address three other topics: judicial supremacy, judges’ roles as finders of fact, and the moral obligation to adjudicate as the law commands. With respect to the prediction theory, however, I conclude that Leiter’s position cannot be defended. Indeed the realists offered two ‘prediction’ theories of law. According to the first, which is best described as a decision theory, the law concerning an event is whatever concrete judgment a court will issue when the event is litigated. According to the second, the law is reduced, not to concrete judgments, but to regularities of judicial (and other official) behavior in a jurisdiction. I end this essay with the suggestion that the realists’ advocacy of the second prediction theory indirectly vindicates Leiter’s reading of the realists as prescient jurisprudential naturalists.     

His master’s voice: H.L.A. Hart and Lacanian discourse theory

H.L.A. Hart’s jurisprudence seems antithetical to Jacques Lacan’s psychoanalysis. Professor Schroeder argues that, in fact, Hart’s concept of law has surprising similarities to Lacan’s ‘discourse of the Master’. Both reject a command theory of law: subjects do not obey law out of fear. Moreover, both insist that the authority of law is completely independent from its content. Anyone seeking to develop a psychoanalytically sophisticated critical legal theory should reconsider Hart. As insightful as his concept of the symbolic is, Lacan has no expertise in legal systems and does not discuss positive law per se. Although he posited a theory of ethics in his Seventh Seminar and the seeds of a jurisprudence are implicit within his theory, he offers no account of legal right, justice or what Hart misleadingly calls ‘morality’. A Lacanian jurisprudence must, therefore, be supplemented by other sources. Moreover, legal positivists should not dismiss psychoanalysis. As insightful as Hart’s jurisprudence is, his theories of legal subjectivity and linguistics are simplistic and his concept of law too narrow. He describes only one aspect of legal experience: obedience to law. He ignores what most legal actors do: Hart’s concept of law excludes the practice of law. Although Lacan’s ‘master’s discourse’ surprisingly parallels Hart’s jurisprudence, Lacan does not restrict the symbolic to the master’s discourse. It requires three other ‘discourses’. Lacan, therefore, supplements Hart. Specifically, Lacan’s fourth discourse describes the excluded practice of law and provides the mechanism by which ‘morality’ can critique law.

The New Legal Realism and The Realist View of Law

New legal realism (NLR) furthers the legal realist legacy by focusing attention on both the pertinent social science and the craft that typifies legal discourse and legal institutions. NLR's globalized ambitions also highlight the potential of a nonstatist view of law. The realist view of law raises three challenges facing NLR: identifying the “lingua franca” of law as an academic discipline within which NLR insights on translation and synthesis should be situated; conceptualizing NLR's focus on bottom‐up investigation, so that it does not defy the rule of law; and recognizing the normative underpinning for NLR's reformist impulse.     

Law and Identity in Colonial South Asia

This essay articulates the contributions of Mitra Sharafi's study of Parsi legal culture to colonial legal studies. Situated at the intersection of the literature on legal pluralism and legal institutions, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772–1947 (2014) uses a range of new legal sources and case law to recover a remarkable history of collective identity that emerged via the medium and infrastructure of law. The Parsis' active participation in colonial legal institutions not only reshaped their normative worlds but also de‐anglicized imperial law.     

Enacting the “Incomprehensible China”: Modern European Jurisprudence and the Japanese Reconstruction of Qing Political Law

The great ambition of Japanese colonialism, from the time of its debut at the end of the nineteenth century, was the reformulation of Chinese law and politics. One of the most extraordinary examples of this ambition is The Administrative Law of the Qing Empire [Shinkoku Gyōseihō], a monumental enterprise undertaken by the Japanese colonial government in Taiwan intended not only to facilitate Japanese colonial administration of Taiwan but also to reorder the entire politico‐juridical order of China along the lines of modern rational law. This article examines the legal analysis embraced in The Administrative Law of the Qing Empire and recounts its attempt to reconstruct the Qing's “political law” (seihō) by a strange, ambiguous, and hybrid resort to “authenticity.” The strangeness of this Japanese colonial production comes from Japan's dual position as both colonizer of Taiwan and simultaneously itself colonized by “modern European jurisprudence”(kinsei hōri). In uncovering the effects of modern European jurisprudence on the Japanese enterprise, we will discover Japan's pursuit of its own cultural subjectivity embedded in The Administrative Law of the Qing Empire, epitomizing the campaign of national identities observable in the process of East Asian legal modernization.     

Queer Legal History: A Field Grows Up and Comes Out

This essay examines recent scholarship on the legal history of sexuality in the United States. It focuses on Margot Canaday's The Straight State: Sexuality and Citizenship in Modern America (2009) and Marc Stein's Sexual Injustice: Supreme Court Decisions from Griswold to Roe (2010). It also reviews recent work on the history of marriage, including Sarah Barringer Gordon's The Spirit of the Law: Religious Voices and the Constitution in Modern America (2010) and George Chauncey's Why Marriage? The History Shaping Today's Debate Over Gay Equality (2004), and the history of military law Defending America: Military Culture and the Cold‐War Court Martial (2005), by Elizabeth Lutes Hillman. The essay argues that this scholarship is significant because it offers a different view of sex and power than the one derived from the early writing of Michel Foucault. “Queer legal history” treats the liberalism of the 1960s‐1970s as sexually discriminatory as well as liberatory. It underlines the exclusions that were part of public policy under the federal G.I. Bill and the New Deal welfare state.     

A Welcome Conversation: Toward a New Historiography of Intellectual Property

This essay considers what tools should be used to study the legal history of intellectual property. I identify three historiographical strategies: narration, contest, and formation. Narration identifies the diverse “narrative structures” that shape the field of intellectual property history. Contest highlights how the inherent instability of intellectual property as a legal concept prompts recurrent debates over its meaning. Formation recognizes how intellectual property historians can offer insight into broader legal history debates over how to consider the relationship between informal social practices and formalized legal mechanisms. I consider Kara W. Swanson's Banking on the Body: The Market in Blood, Milk and Sperm in Modern America (2014) in light of these historiographical strategies and conclude that Swanson's book guides us to a new conversation in the legal history of intellectual property law.     

The Concept of Jurisprudence*

Abstract. The first part of this article contains (i) considerations as to the relationship between jurisprudence and legal dogmatics, legal philosophy, and sociology of law; (ii) considerations about the status of jurisprudence both as a meta- and an object-theory. These lead to the suggestion that jurisprudence should be defined as a general juristic theory of law and legal science. In the second part, the character and elements of this definition are explained systematically. The article's main thesis is that jurisprudence is not distinguished from legal philosophy and sociology of law by its subject or its method, but by the specifically juristic research aspect or perspective it is based upon.     

(Non‐)Enforcement of Directors’ Duties in Corporate Groups: Goh Chan Peng v Beyonics Technology Ltd

Corporate groups, a ubiquitous feature of modern business, pose formidable challenges for common law courts relying on traditional corporate law doctrine. Arising out of a corporate group's recent bid to recover millions of dollars in lost profits from a former director and CEO who had diverted a core business, Goh Chan Peng v Beyonics Technology Ltd raised thorny issues of separate legal entity doctrine, single economic unit theory, and reflective loss shared by common law legal systems. Despite finding that the defendant had breached his duties to the ultimate holding company, the Singapore Court of Appeal absolved the faithless director from most of his liabilities, relying on limited domestic precedent to the exclusion of a rich body of Commonwealth jurisprudence – including the House of Lords’ landmark Johnson v Gore Wood decision. This note explores the paths not taken by the court, and highlights the pitfalls of a narrow, autochthonous approach to problems of common law doctrine.     

Jurist in Context: William Twining in Conversation with David Sugarman

This discussion derives from extended conversations between William Twining and David Sugarman in which William talks about his latest book, Jurist in Context: A Memoir (JIC). JIC recounts the development of William's thoughts and writings, addressing topics central to his life and research. The dialogue conveys and extends the arguments on a selection of the topics addressed in the book, engaging with issues of particular interest to readers of this journal. Here, William adds a more personal commentary to his formal publications. The conversation facilitates reflection on issues such as law teaching and legal scholarship; the meaning, use, and limitations of ‘law in context’; and the role and character of jurisprudence. It also offers a fascinating window on the development of, and the struggles surrounding, legal education and academic legal thought over the second half of the twentieth century and the early part of the twenty-first.     

分析法学对行为概念的重建

民法学、刑法学及行政法学领域对行为概念的研究 ,为整个法学对行为概念体系的原理性构建提出了要求。分析法学 ,尤其是霍菲尔德的权利概念元形式的分析框架 ,提供了在法理学层面上构建行为概念体系的一种思路。按这一思路 ,行为概念有四种元形式 :事实行为、法律行为、合法行为和违法行为。它们与霍菲尔德提出的四种权利概念元形式一起构成八个法律基本元素 ,共同体现了法律的逻辑推理结构     

The Evolutionary Game‐Theoretic Foundations of Law

Interdisciplinary work in the law often starts and stops with the social sciences. To produce a complete understanding of how law, evolutionary game‐theoretic insights must, however, supplement these more standard social scientific methods. To illustrate, this article critically examines The Force of Law by Frederick Schauer and The Expressive Powers of Law by Richard McAdams. Combining the methods of analytic jurisprudence and social psychology, Schauer clarifies the need for a philosophically respectable and empirically well‐grounded account of the ubiquity of legal sanctions. Drawing primarily on economic and social psychological paradigms, McAdams highlights law's potential to alter human behavior through expressions that coordinate. Still, these contributions generate further puzzles about how law works, which can be addressed using evolutionary game‐theoretic resources. Drawing on these resources, this article argues that legal sanctions are ubiquitous to law not only because they can motivate legal compliance, as Schauer suggests, but also because they provide the general evolutionary stability conditions for intrinsic legal motivation. In reaction to McAdams, this article argues that law's expressive powers can function to coordinate human behavior only because humans are naturally and culturally evolved to share a prior background agreement in forms of life. Evolutionary game‐theoretic resources can thus be used to develop a unified framework from within which to understand some of the complex interrelationships between legal sanctions, intrinsic legal motivation, and law's coordinating power. Going forward, interdisciplinary studies of how law works should include greater syntheses of contemporary insights from evolutionary game theory.     

Theory of Custom,Dogmatics of Custom,Policy of Custom: On the Threefold Approach of Polish‐Russian Legal Realism

Proceeding from the insights of Petra?ycki, Polish‐Russian legal realists (PRRs) distinguished legal theory, legal dogmatics, and legal policy. Legal theory describes legal phenomena in a value‐free way and formulates causal laws concerning those phenomena. Legal dogmatics and legal policy are, by contrast, value‐laden sciences involving the subject's—i.e., the scientist's—own attitudes toward existing or imagined phenomena: Dogmatics evaluates behaviors based on the subject's adoption of given normative sources (NSs) as binding, while legal policy evaluates the effects produced by given NSs based on causal laws and on the subject's goals (for Petra?ycki, these goals come down to that of fostering love, or benevolence). PRRs then conceptualize custom as a representation of people behaving in a certain way (R_c): We have a custom on the threefold condition that (a) R_c is believed true by a given X, (b) R_c causes the existence of a given normative psychical experience (NPE) in X, and (c) X expressly refers to—or would refer—to R_c in justifying an NPE. PRRs use the term customary law to refer to legal experiences (i.e., NPEs involving a sense of entitlement) caused and justified by an R_c. From a theoretical perspective, both the subject's adoption of custom as a binding NS and its truth are irrelevant. It is only the presence of a customary NPE in the X under study that matters. From a dogmatic perspective, by contrast, what matters is (a) whether the dogmatician—qua subject—adopts custom as a binding NS, (b) whether it is true that people behave in a given way b_w, and (c) whether b_w resembles the behavior that is deontically qualified in the norm under dogmatic evaluation. Finally, from a legal‐political viewpoint, PRRs hold that customary law in modern societies, owing to its conservative nature, should be eradicated for the goal of removing inequalities and fostering benevolence.     

Support Structures and Constitutional Change: Teles,Southworth, and the Conservative Legal Movement

This essay reviews two recent works in political science on the American conservative legal movement: Steven M. Teles's The Rise of the Conservative Legal Movement: The Battle for Control of the Law (2008) and Ann Southworth's Lawyers of the Right: Professionalizing the Conservative Coalition (2008). It examines these books in the context of a larger debate over the variables that best explain constitutional change in general and the recent “conservative counterrevolution” in Supreme Court jurisprudence in particular. It shows how these studies build on the scholarship of Charles Epp, who argued in The Rights Revolution (1998) that serious constitutional change requires not only the right cast of characters on the court, but also a strong “support structure” in the legal profession and civil society. Finally, it draws on the author's own research on the Federalist Society for Law and Public Policy to illustrate some important avenues for further inquiry.     

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.     

Islamic Law in Action: A Historical Discussion

This review essay engages Kristen Stilt's recent book, Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt (2011), in a fashion that highlights its contributions to the study of Islamic law. In particular, it underlines the methodological arguments made in the book that might help us think about Islamic legal practice in sophisticated and historically grounded ways. As elaborated in the article, these arguments have important implications for modern as well historical settings. Specifically, Stilt's discussion of “Islamic law in action” reveals the inherent flexibility of Islamic legal practice to accommodate political change. The article also discusses how further research on the topic could benefit from specific approaches and orientations.     

Devotion to Legalism: On the Brexit Case

This note examines the UK Supreme Court's judgment in the Brexit case, Miller v Secretary of State for Exiting the European Union. The case upheld the decision of the High Court, which rejected the claim that the foreign affairs prerogative provided a legal basis for giving notice to EU institutions of the UK's intention to withdraw from the EU. But the Supreme Court's preferred basis for dismissing that claim rested on the more general proposition that significant constitutional change can only be effected by statute. This position offers the germs of a jurisprudence of constitutional change and was substantiated by means of an analysis of Parliament's dual capacity as legislator and constituent agent. Miller also includes important and potentially innovative dicta on the relationship between international and domestic sources of law.     

Women's Rights Issues Among Bombay Parsis: A Legal Anthropologist's Thoughts on Mitra Sharafi's Law and Identity in Colonial South Asia

I focus in this essay on legal issues related to women's rights in the British colonial period that are discussed in Mitra Sharafi's 2014 book, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772–1947. Beginning in the early nineteenth century, the Parsi leadership actively lobbied for laws related to intestate inheritance, women's property rights, divorce, and child marriage that were consistent with their community's customary values and practices. During the same period, legal reform movements were also underway on behalf of Hindu and Muslim women and, to a lesser extent, Christian women. This essay highlights some of the common themes in those movements and discusses, in particular, the similarities and differences in what was achieved for Parsi women and their Hindu sisters, as they and their respective male leaders traversed the road toward greater gender equality under the law.     

Judging in Place: Architecture,Design, and the Operation of Courts

What can judicial architecture tell us about how courts function? In this essay, I examine Legal Architecture: Justice, Due Process, and the Place of Law (2011) by Linda Mulcahy and Representing Justice: Invention, Controversy, and Rights in City‐States and Democratic Courtrooms (2011) by Judith Resnik and Dennis Curtis. I argue that both books develop an understanding of judicial architecture as a socially contingent form of communication. I relate this expressive theory of architecture to older arguments about design and construction articulated by poet and novelist Victor Hugo and architect Frank Lloyd Wright. I also briefly explore the connections between this developing “jurisprudence of what's real” and more conventional forms of law‐and‐courts scholarship.