The Limits of Legal Realism,
نویسنده
چکیده
Holmes launched the highly successful American school of legal realism with his remark that "law" consists of "prophecies of what the courts will do in fact." [FN1] Later writers amended this proposition to include all officials, since decisions by judges constitute only a fraction of authoritative decisionmaking. [FN2] In its heyday, realism stimulated many proposals for legal reform and social change; [FN3] it also alerted students of the law to the effectiveness of arguments appealing to values, even if such arguments were not to be found in the decisions of appellate courts or in other "materials" traditionally used in law schools. The liberating perspective on legal processes offered by realism can still excite students of law. This article, however, will not restate the tenets of legal realism or reevaluate it from traditional perspectives. [FN4] Rather, it will address some recent criticisms of legal realism, primarily those of H.L.A. Hart, that have been unanswered in the literature and have appeared to discredit the realist approach to law. The article will also articulate what I believe to be more difficult problems with legal realism. Thus I shall attempt first to give realism its due by extending it to the "limits of its logic." I shall then explore whether that extension can carry us to a full understanding of "law" or whether other limiting considerations intervene before that point can be reached.
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