Leiter on the Legal Realists |
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Authors: | Michael Steven Green |
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Institution: | 1.William & Mary School of Law,Williamsburg,USA |
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Abstract: | 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. |
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