Some Myth about Realism

This paper discusses the place of philosophical naturalism in the philosophy of law, with special reference to Scandinavian Realism. Hägerström originated a non‐cognitivist analysis of certain fundamental legal concepts, but he also proposed an error theory. The two approaches are incompatible, but were not always clearly distinguished. Among his followers, Olivecrona and Ross gradually abandoned the latter, at least from the late 1940s. Many accounts of their views are unclear, because the presence of these two kinds of analysis, their incompatibility, and the gradual abandonment of one, has often been overlooked. A corollary of the discussion is that there are some important corrigenda in the entry “Naturalism in legal philosophy” in the Stanford Encyclopedia of Philosophy.     

重读美国法律现实主义

美国法律现实主义不仅颠覆了传统法律思维范式,而且也在美国社会转轨时期对变革美国法制和法学教育提出了初步方案.     

Realism and eyewitness identification research

The importance of realism in eyewitness identification research is examined as the basis for both the credibility and utility of the information it provides. Without knowledge of how laboratory eyewitnesses behave differently from real eyewitnesses, the relevance and external validity of identification studies may be questioned. Factors differentiating these identification contexts are discussed. Witnesses in identification studies are in social decision-making contexts similar to those of real eyewitnesses when their decision to choose someone or to reject the lineup may have a significant impact on others' lives. Two studies are reported which preserve aspects of realism. Both presented witnesses with a realistic vandalism. The second maintained realism through the identification situation. The first study demonstrated effects of biased instructions on witnesses' willingness to make a lineup choice and on identification errors (with the offender present and absent). The second study showed an unexpected preference of witnesses for making an identification when the supposed consequences for the suspect were to be severe. To evaluate the generalizability and utility of laboratory studies it is important to determine whether their results and related theoretical analyses survive the transposition to more realistic contexts. Realistic studies should serve as benchmarks against which simulations are compared and their generalizability evaluated.     

Moral Realism and Kantian Constructivism

Abstract. This paper questions nearly every major point Christina Lafont (2004 ) makes about “the validity of social norms” and their relation to moral realism and Kantian constructivism. I distinguish realisms from theories of objective or subjective knowledge, then from cognitivism. Next, I distinguish Kant and constructivism from Rawls' political constructivism. Finally, I propose clues for an alternative theory of moral constructivism.     

Left Realism: a defence

Conclusion Can anything be said in conclusion on the essence of the realist approach? It is important to end by restating that realism originates as a reaction, in current social and political conditions to the absences in radical criminology. These are the absence of a discourse about crime and a refusal to talk about the constructive as opposed to the destructive role of institutions of criminal justice. Realism rejects a utopian strategy of waiting for the state to whither away, knowing that we would only have to reinvent it if it did.The starting point for realism is the strategy of democratization. The maximization of democratic participation is ultimately the solution both to the problem of what is crime and to the problem of how to deal with it. The solution to the problem of criminal justice is the democratization of its institutions while at the same time recognising their necessary functions. The realist programme is concerned with the redrawing of the boundaries between and the transformation of the character of institutionsand communities in accordance with the values of socialist pluralism.     

融贯论、道德实在与法律——一个基于内在实在主义的整合

不同的真理理论导致不同的法律方法论。符合论实在主义的哲学会导致哲学的和自然主义的法律发现,而融贯论则是规范分析和法律解释的基础。不少哲学家认为没有脱离融贯论的符合论(如普特南)。但同时,从真理的客观性维度讲,融贯论只能保障认知的客观性,而不能获得形而上的客观性。融贯论的结果必然是相对主义。因此,法律哲学的认识论选择必然是折中的,这个折中的认识论可以由普特南的内在实在主义来承担,而内在实在主义将最终引向包容的法律实证主义。     

Left Realism,community and state-building

Left Realism, as it emerged in the mid 1980s in the UK was a policy-oriented intervention focusing on the reality of crime for the working class victim and the need to elaborate a socialist alternative to conservative emphases on ‘law and order’. It saw the renewal of high crime, deprived communities as involving democratic police accountability to those communities. During the subsequent period developments have moved very much against the orientations of Left Realism. This paper compares two different contexts of renewal—the deprived urban community in the UK and the war-torn ‘failed state’ in Bosnia—and identifies certain common policy orientations which are then criticised from a Left Realist perspective.     

The Philosophy of Scandinavian Legal Realism

Abstract.  The jurisprudential movement known as Scandinavian Legal Realism was founded by the Swedish philosopher Axel Hägerström and the Danish philosopher and jurist Alf Ross in order to destroy the distorting influence of metaphysics upon legal thinking and to provide the secure philosophical foundation for scientific knowledge of the law. I shall present Hägerström's philosophical theory and argue that he is committed to the metaphysical view that the world in time and space consists of causal regularities between things and events devoid of any values that is related to his epistemological view that what there is can be known by experience. Hägerström's philosophy advances a naturalistic approach that conceives the positive law as a system of rules in terms of behavioural regularities among human beings and legal knowledge as an empirical inquiry into the causal relations between legal rules and human behaviour. This approach is followed by his pupils, the Swedish lawyers A. V. Lundstedt and Karl Olivecrona, whereas Ross appeals to logical positivism. The naturalistic approach should be taken seriously since it leaves no room for the normativity of the law and for legal knowledge in terms of reasons for belief and action.     

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.     

Realism and Analysis Within Public Law

Allan, Loughlin and Walker represent leading theorists within the realm of public law analysis. Accordingly, when such theorists write on a similar topic, such as that of the theory of constitutionalism, it can be assumed that their analysis and evaluation of the theory represents a ‘realistic’ account. However, close examination of their writings does not reveal similarity but instead much divergence, even incompatibility. This then raises the question, how can such diversity represent reality? If all three theorists are examining the same phenomenon then surely there must be some similarity between their accounts for there to be reality? Alternatively, if all the perceptions of the theorists are indeed real, then perhaps it is the way that public lawyers represent reality that needs to be examined.     

现实主义法学的批判与建构

法律形式主义曾是美国法学的正统,现实主义法学则从概念、逻辑、规则等多个角度对法律形式主义进行了批判,并以预测模式为中心,提出了个殊主义、目的性司法和对司法过程进行经验主义探究等改革主张,对美国法理学的未来走向影响深远。     

法律现实主义与转型社会刑事司法

我国社会正处于转型期,各种社会矛盾凸显,刑事司法面临着新的挑战。西方的法律现实主义能为我国转型期刑事司法提供可资借鉴的方法论和改革思路。法律现实主义运动在批评形式主义与三段论式审判的基础上,把法律看作具有多重目标的社会引擎,关注司法行为、纠纷解决与社会问题。在中国语境下,引入法律现实主义,不是要简单地否定形式主义,而是应理性对待形式主义并在其中融入客观主义;应在刑事司法裁判中适用利益权衡,重视经验归纳而不拘泥于简单的演绎推理;应以实现社会正义为核心,构建合理衔接的多元纠纷解决机制。     

Children's Law: Toward a New Realism

The realist approach that has dominated American jurisprudence has long had especially great acceptance in regard to children's issues. Ironically, however, decision making on such topics has seemed to be particularly unlikely to be informed by careful assessments of social reality. Symbolism has prevailed over pragmatism. Psycholegal research on children's issues has also often been misdirected. Application of the Convention on the Rights of the Child may point the way to more psychologically minded children's law.     

The Common Law Clean Up of the ‘Workshop of the World’: More Realism About Nuisance Law's Historic Environmental Achievements

This article examines the environmental benefits arising from compliance with common law nuisance injunctions during the British industrial revolution. It argues, based on the outcomes of industrial nuisance actions involving allegations of serious air and river pollution, that many millions of pounds were invested by corporate polluters in designing and implementing clean technologies within the framework of the common law. Nuisance law was not an unqualified success in the field of environmental protection at this time, but overall the findings contribute to the on‐going critique of the nuisance law histories of Brenner and McLaren, which argue that various limitations of the common law are at the root of modern environmental problems. The discovery of historic practical measures of environmental protection through common law enforcement raises important conceptual, policy, and legal questions for today, and disciplinary questions regarding the rigour of realist legal scholarship concerning the historic performance of the law.