T R L A L R: HE EAL Egacy of Merican Egal Ealism

OXFORD JOURNAL OF LEGAL STUDIES (forthcoming)
THE REAL LEGACY OF AMERICAN LEGAL REALISM

Hanoch Dagan
Stewart and Judy Colton Professor of Legal Theory and Innovation
Tel‐Aviv University Faculty of Law
daganh@post.tau.ac.il

October 24, 2017

© Hanoch Dagan, 2017
Electronic copy available at: https://ssrn.com/abstract=2938349

Hanoch Dagan The Legacy of American Legal Realism
Hanoch Dagan*
The most important promise of the legacy of legal realism is its robust understanding of
law, which is irreducible to one or another more or less familiar jurisprudential school, as
a set of institutions distinguished by the difficult accommodation of three constitutive yet
irresolvable tensions: between power and reason, science and craft, and tradition and
progress. This essay defends that view through a critical analysis of Brian Leiter’s
ambitious and provocative account of legal realism, whose legacy he described as
naturalized jurisprudence. I argue that Leiter understates the realist indeterminacy
critique of pedigreed sources, misses the realist distinction between doctrine (or pedigreed
sources) and law, and errs in classifying legal realists as tacit hard positivists. Studying
these mistakes and refining his naturalistic claims reveals why Leiter must also be incorrect
in reducing legal realism to a descriptive theory of adjudication. Leiter’s account obscures
the real legacy of legal realism.

1. THE TASK ..............................................................................................................................................2
2. THE REALIST INDETERMINACY CRITIQUE ..................................................................................4
3. LEGAL REALISM AND HARD LEGAL POSITIVISM .....................................................................9
4. THE RULE OF LAW AND THE QUEST FOR JUSTICE ..................................................................15
5. SOCIAL POWER AND THE SEPARATION THESIS ......................................................................20
6. LEGAL REALISM AND NATURALIZED JURISPRUDENCE ........................................................24
7. THE REALIST VIEW OF LAW ..........................................................................................................30

This paper is prepared for the Youard Lecture in Legal History at Oxford University in
*
March 2017. Thanks to Itzik Benbaji, Andrew Burrows, Avihay Dorfman, Richard Ekins,
Timothy Endicott, David Enoch, Chaim Gans, John Gardner, Josh Getzler, Alon Harel, Ori
Herstein, Roy Kreitner, Dorota Leczykiewicz, Brian Leiter, Dan Priel, Rob Stevens, and
two anonymous referees for helpful comments.
1
Electronic copy available at: https://ssrn.com/abstract=2938349

1. THE TASK
Almost a century after the heyday of American legal realism, its legacy is still
somewhat unclear. While leading legal philosophers – notably H. L. A. Hart and
Ronald Dworkin – for decades dismissed its contribution, many other legal
scholars, especially in the United States, viewed legal realists as their mentors. The
latter’s embrace, however, epitomized in the ‘we are all realists now’ cliché, would
prove no less damaging to its legacy than the former’s rejection, given the fierce
rivalry between their purported descendants – lawyer economists and critical legal
studies scholars.
Things have changed in the last two decades. Brian Leiter, an eminent legal
philosopher, has devoted a robust body of scholarship that culminated in his book
Naturalizing Jurisprudence to defend the argument that ‘the real Realist legacy in
legal philosophy’ is ‘[a] naturalized jurisprudence predicated on a pragmatic
outlook’.1 Leiter’s rich account of legal realism can be restated as three connected
theses: (1) a thesis about the realist pragmatic task of assisting lawyers to predict
outcomes that, as such, makes no contribution to legal theory beyond its
descriptive claim re adjudication; (2) a thesis about the legal realist naturalistic
position, both concerning how judges decide and concerning the premise of law’s
predictability for legal insiders; and (3) a thesis about the implicit jurisprudential
position of legal realism as necessarily relying on legal positivism, or more
specifically: a claim that legal realists are tacitly hard positivists.
Leiter’s account of legal realism is intriguing and provocative. A sustained
engagement with his account is thus a promising enterprise for any student of
legal realism. For me, this encounter is an opportunity to refine my own
understanding of legal realism,2 both by enriching it with some of Leiter’s insights
and by highlighting our disagreements and fleshing out their significance. Indeed,
notwithstanding his valuable contribution to the understanding of legal realism,
1 B Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in
Legal Philosophy (OUP 2007) 21.
2 See H Dagan, Reconstructing American Legal Realism & Rethinking Private Law Theory (OUP
2013).
2
Leiter makes a few related mistakes, which eventually obscure the most important
promise of the realist legacy.
I begin with Leiter’s interpretation of the realist claim on the indeterminacy of
law’s pedigreed sources. For convenience, I will refer to the class of pedigreed
sources – that is: the pertinent black‐letter law (legislative enactments, judicial
decisions, and the like) – as ‘legal doctrine’ or simply ‘doctrine’.3 Leiter correctly
observes that this claim is ‘central to the whole realist enterprise’.4 But he
understates, and thus domesticates, the realist indeterminacy – or, more precisely,
under‐determinacy – critique. Furthermore, Leiter relatedly misses the important
realist distinction between doctrine (or pedigreed sources) and law.
Leiter’s mistakes on these two counts imply that his influential thesis about
legal realists as tacit hard positivists must also be wrong. This thesis seems
attractive because it suggests that legal realism does not threaten the rule of law.
Rejecting it might therefore seem to entail disastrous consequences. I argue,
however, that when legal realism is properly understood, it does not clash with
the rule of law. Since my defense of this proposition could in turn suggest
similarities between the realist view of law and Dworkin’s, I also highlight the
differences between these two positions.
Finally, I revisit Leiter’s main substantive claim about the realist legacy that
he reconstructs as naturalized jurisprudence. I argue that Leiter overstates his
claim and I situate it in the broader realist account of the dynamics of legal
evolution. Pace Leiter’s first thesis, legal realism is not merely a descriptive theory
of adjudication.5 Rather, legal realism offers a robust understanding of law –
irreducible to one or another more or less familiar jurisprudential school – as a set
of institutions distinguished by the difficult accommodation of three constitutive
3 At times, ‘doctrine’ is used in a broader sense: to signify the content of the law, or what
I call ‘the conventional understanding of the pedigreed sources’. I use the narrower sense
of the term ‘doctrine’ noted in the text in order to highlight (rather than obscure) the
distinction, which plays an important role in my account, between two families of legal
reasons: doctrinal and normative.
4 Leiter (n 1) 122. Subsequent references appear parenthetically in the text.
5 cf W Twining, Karl Llewellyn and the Realist Movement (2nd edn, CUP 2012) 440.
3
yet irresolvable tensions: between power and reason, science and craft, and
tradition and progress.6
2. THE REALIST INDETERMINACY CRITIQUE
Realists, Leiter contends, claim that ‘(1) legal rules are indeterminate, and, as a
result, (2) legal rules do not determine or constrain decision’ (73). The former
claim, of rational indeterminacy, implies that ‘the class of legal reasons – i.e., the
class of legitimate reasons that a judge may offer for a decision – does not provide
a justification for a unique outcome’ (39). Realists argue that this indeterminacy
‘resides ... not in the rules themselves, but in the ways we have of characterizing
what rules statutes and precedents contain’ given ‘the existence of equally
legitimate, but conflicting, canons of interpretation that courts could employ to
extract different rules from the same statutory text or the same precedent’ (74‐75).
This and several other statements – such as ‘rules of law do not make much
(causal) difference to how courts decide cases’ (69) – seem to suggest radical
indeterminacy. But Leiter clarifies that he reads the realists to advance a much
more circumscribed position: the indeterminacy of black‐letter law is not global
but applies instead only to ‘many cases’ (19‐20, 64), meaning that ‘frequently’ this
‘interpretive latitude’ injects ‘a considerable degree of indeterminacy into law’ (75‐
76).
Regarding this particular set of cases, Leiter argues, the realist claim of causal
indeterminacy – that legal doctrine does not determine or constrain decisions –
contests an undefended assumption of many legal positivists. Whereas positivists
tend to view causal indeterminacy as marginal to the practice of adjudication,
realists insist that it is quite typical of ‘cases actually litigated’, at least ‘at the stage
6 One methodological comment may be in place here: I share Leiter’s critique of the
treatment of legal realism ‘as a discredited historical antique’ (80), and the attempt to offer
a reconstruction of the legal realists’ vision of law that is currently valuable. This task
implies that the contest between our approaches can be settled not only by reference to
the (vast) body of realist scholarship that we both interpret, but also by comparing the
usefulness of our accounts to contemporary legal theory. A full assessment along these
lines would require a full restatement of both our books, but I hope to provide here a fair,
if abbreviated version.
4
of appellate review’ (76‐77). So the ‘genuine point of dispute between Hart and
the realists’ is one of degree: ‘While Hart would locate indeterminacy, and thus
causal irrelevance, of rules “at the margin”, the realist scepticism encompasses the
“core” of appellate litigation’ (78). Hart may be right in this presupposition, Leiter
concludes, but he offers no supporting argument ‘other than his armchair
confidence in the correctness of his own view’ (78‐79).
Leiter further criticizes Hart for misrepresenting the realist argument as
purportedly relying on ‘general features of language’. Hart correctly argued that
‘this type of indeterminacy resides “at the margin of rules”’, but this claim is
unresponsive to the realist challenge (74). As Leiter maintains, the realist
argument for the rational indeterminacy of legal doctrine does not focus on the
ambiguity in rules but on the fact that the same text can yield more than one rule.
Regarding statutes, this indeterminacy is generated by the divergent interpretive
instructions that can be potentially implemented; respecting case law, it derives
from the fact that precedents can be read in varying degrees of abstraction (75).7
* * *
But realists go even further. For them, this argument applies not only to discrete
doctrinal sources, as it does for Leiter, but to the entire doctrinal landscape. For
legal realists, the indeterminacy of legal doctrine derives above all from the actual
leeway when choosing the doctrinal text from which the pertinent rule is to be
extracted, rather than from the ambiguity of the rule or the text once chosen.8
7 Similarly, the idea of reasonable doctrinalist determinacy is false also because the
elaboration of any legal concept can choose from a broad menu of possible alternatives.
FS Cohen, ‘Transcendental Nonsense and the Functional Approach’ (1935) 35 Columbia L
Rev 809, 820–1, 827–9. The multitude of contemporary understandings regarding any
given legal concept (such as property or contract), both within and outside any given
jurisdiction, as well as the wealth of additional alternatives that legal history offers, defies
the quest for doctrinal determinate answers.
8 The claim is also different from the way Leslie Green formulates the realist core thesis as
the idea that legal reasoning is ‘source‐laden’, but ‘most sources of law are permissive’. L
Green, ‘Law and the Causes of Judicial Decisions’ (2009) Oxford Legal Studies Research
5
Recognizing multiplicity as the main source of the indeterminacy of black‐
letter law and appreciating its prevalence is of interest not only theoretically but
also due to its significant effects on the scope and depth of this indeterminacy.
Thus, Karl Llewellyn claims that legal doctrines (meaning the set of law’s
pedigreed sources) are patchworks of contradictory premises covered by ‘ill‐
disguised inconsistency’ because, in all of them, ‘a variety of strands, only partly
consistent with one another, exist side by side’.9 Any given legal doctrine –
including (but by no means only) the one guiding the lawyers’ interpretative
activity10 – suggests ‘at least two opposite tendencies’ at every point.11 Indeed, the
multiplicity of black‐letter law is not limited to the much more circumscribed
phenomenon of conflicting rules.12 For (almost) every case there are opposite
doctrinal sources that need to be accommodated: a rule and a frequently vague
exception, or a seemingly precise rule and a vague standard that is also potentially
applicable (such as ‘good faith’ or ‘reasonableness’). The availability of multiple
doctrinal sources on any given legal question, all of which can be either contracted
or expanded, results in profound and irreducible doctrinal indeterminacy.13
Failure to appreciate the significance of the multiplicity of potentially relevant
black‐letter texts to doctrinal indeterminacy is crucial because, rather than an
esoteric feature, this multiplicity is endemic to law. The main reason – as
emphasized by the prominent legal positivist Hans Kelsen14 – is that legal rules
Paper 14/2009, 20 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1374608>

accessed 25 October 2017.
9 KN Llewellyn, The Case Law System in America (P Gewirtz and M Ansaldi eds, U of
Chicago Press 1933) 45.
10 See KN Llewellyn, ‘Remarks on the Theory of Appellate Decision and the Rules or
Canons about How Statutes Are To Be Construed’ (1950) 3 Vanderbilt L Rev 395, 401–6.
11 Llewellyn, The Case Law System (n 9) 51.
12 Compare J Gardner, Law as a Leap of Faith: Essays on Laws in General (OUP 2001) 35.
13 See Llewellyn, The Case Law System (n 9) 51.
14 See H Kelsen, General Theory of Law and State, (A Wedberg tr, Harvard UP 1949) 3, 110–
23.
6
and doctrinal sources never exist in solitude and all are invariably embedded
within a legal system. When assessing the claim of doctrinal indeterminacy,
therefore, we must look at the legal doctrine as a whole, as lawyers always do.
This broader perspective immediately highlights an element of choice that is
obscured in discussions focusing on the indeterminacy of discrete rules or of
specific texts,15 including, respectively, Hart’s and Leiter’s. Because ‘the
authoritative tradition speaks with a forked tongue’,16 there is always some
latitude when selecting the source to be applied to the case at hand. For legal
realism, choosing between pedigreed sources competing to control the case is the
major source of doctrinal indeterminacy.17
Once the realist argument Leiter mentions regarding the potentially different
rules that can be extracted from a given pedigreed source is restated along these
lines (that is, once it is applied to these multiple potentially applicable sources),
Leiter’s attempt to domesticate it collapses. Realists definitely do not deny that
legal doctrine rules out many – indeed, most – options, and even the additional
factor of doctrinal multiplicity does not prove that the rational indeterminacy of
legal doctrine is inescapable. Nevertheless, the latitude when choosing a doctrinal
source from the various materials potentially applicable at each juncture in all
cases is still dramatic: ‘[T]he available authoritative premises are at least two, and
15 The text implies that no plausible theory of individuation of doctrinal sources can
counteract the effect of doctrinal multiplicity. More precisely, the claim is that the
individuation conventions through which we can identify a legal ‘unit of content roughly
meeting the conditions of relative independence, simplicity, and interest’ – J Raz, The
Concept of a Legal System (2nd edn, Clarendon Press 1980) 223 – necessarily rely, as I explain
below, on the conventional understandings of these pedigreed sources rather than on the
sources as such.
16 KN Llewellyn, ‘Some Realism about Realism’ in KN Llewellyn, Jurisprudence: Realism in
Theory and in Practice (U of Chicago Press 1962) 42, 70.
17 See ibid 58; FS Cohen, ‘The Problems of a Functional Jurisprudence’ (1937) 1 Modern L
Rev 5, 10‐11. See also EA Purcell, The Crisis of Democratic Theory: Scientific Naturalism and
the Problem of Value (UP of Kentucky 1973) 90; A Altman, ‘Legal Realism, Critical Legal
Studies, and Dworkin’ (1986) 15 Philosophy & Public Affairs 205.
7
[] the two are mutually contradictory as applied to the case in hand’.18 Since legal
norms are ‘in the habit of hunting in pairs’19 – because legal doctrine always offers
at least ‘two buttons’ – more than one doctrinally applicable option will always
remain.20 Pace Leiter, the realist claim re the indeterminacy of black‐letter law is
not simply prevalent but still limited to appellate litigation. Instead, this claim is
both profound and global, with legal realists viewing legal doctrine as hopelessly
indeterminate.
* * *
None of these arguments challenges Leiter’s critique of caricaturing realism as a
claim about judges’ exercising unfettered discretion in reaching results based on
their personal predilections. He describes this view as the ‘Frankification’ of legal
realism, and correctly charges its subscribers with the fallacy of viewing Jerome
Frank – an extreme proponent of the ‘idiosyncrasy wing’ of legal realism – as its
typical representative. But Frank, as Leiter notes, is a minority voice (16‐17, 25‐
26).
Indeed, mainstream legal realists recognize that the social practice of law at a
given time and place provides insiders in the pertinent legal community
determinate answers to doctrinal quandaries.21 These insiders’ understandings
converge on many legal issues, including complicated ones, and they often tend
to read the pertinent pedigreed sources similarly. Yet, this legal determinacy,
crucial in the realist view of law and discussed further below, is not inherent in the
doctrine (legislative enactments and judicial decisions) and rests instead on the
social practice of law. Put differently: the first question of any legal analysis is one
18 Llewellyn, ‘Some Realism’ (n 16) 58. See also ibid 70.
19 WW Cook, ‘Book Review of The Paradoxes of Legal Science by Benjamin Cardozo’ (1929)
38 Yale LJ 405, 406.
20 F Rodell, Woe Unto you, Lawyers! (Reyond & Hitchcock 1940) 154. See also J Dewey,
‘Logical Method and Law’ in WW Fisher and others (eds), American Legal Realism (OUP
1993) 185, 192; J Frank, Law and the Modern Mind (Stevens 1949) 138.
21 Contra M Sinclair, ‘“Only a Sith Thinks Like That”: Llewellyn’s “Dueling Canons”, One
to Seven’ (2005–2006) 50 New York L School L Rev 919, who mistakenly argues that such
predictability defies Llewellyn’s claims regarding the canons of interpretations.
8
of similarity (and dissimilarity) between a new case and one or more doctrinal
sources. Typically implicit, this inquiry is not – because it cannot be – governed
by general rules, but is premised instead on certain background understandings.
These understandings, it is important to add, are not merely linguistic; rather, they
are prevalent within the pertinent legal community because they are based on what
insiders implicitly perceive as obvious.
Therefore, what accounts for law’s stability and predictability, rather than its
pedigreed sources, is their prevalent understanding within that community – the
implicit sense of obviousness shared by insiders re ‘on‐the‐wall’ interpretations of
the doctrine.22 This understanding is stable but contingent, in the sense that it can
change even when the pedigreed sources themselves remain intact. Consider your
garden‐variety example of a case construing statutory language, or a set of
common law cases, differently from previous interpretations of these very same
sources. Law cannot be fully understood in strictly doctrinal terms, which is why
realists take pains to highlight its extra‐doctrinal features.23
3. LEGAL REALISM AND HARD LEGAL POSITIVISM
Leiter would undoubtedly object to this last proposition given his thesis on
realism’s tacit hard positivism. The conventional view, which this thesis counters,
is that legal positivism and legal realism are ‘essentially incompatible or opposed’
22 See JM Balkin, ‘“Wrong the Day It Was Decided”: Lochner and Constitutional
Historicism’ (2005) 85 Boston U L Rev 677, 711‐25.
23 On these grounds, Leiter’s suggestion that a restatement would eliminate the realist
indeterminacy critique – B Leiter, ‘Legal Realism and Legal Doctrine’ (2015) 163 U of
Pennsylvania L Rev 1975, 1978, 1983–84 – is misleading. Such a legal reform may well be
desirable, but it neither will nor can escape the realist indeterminacy critique. A
restatement is also a set of many rules – and typically quite a few open‐ended standards
(See A Schwartz and RE Scott, ‘The Political Economy of Private Legislatures’ (1995) 143
U of Pennsylvania L Rev 559) – that can all be expanded or contracted. If the restatement
project is nonetheless helpful, it is because restatements can make law more transparent.
Alongside their sets of code‐like rules, they offer an updated map of the legal terrain, that
is, of the way the pertinent legal actors (courts) understand these pedigreed sources and
their respective scope of application.
9
(59) given the clash between the former’s insistence that ‘prior official acts (such
as legislative enactments and judicial decisions) constitute “law”’ (69), and the
latter’s elaborate account of the indeterminacy of these sources. Quite the
opposite, argues Leiter: legal realists are actually ‘tacit legal positivists’ (121). The
reason is that the realist account of adjudication, just mentioned, ‘must presuppose
a [positivist] theory of law’ (60). The source of such implicit reliance is no other
than the realist arguments of indeterminacy, which ‘depend crucially’ on hard (or
exclusive) positivism, in which ‘facts about pedigree or sources’ primarily
determine legal validity (121‐23).
Were the realist indeterminacy critique limited to appellate cases (as Leiter
argues), this provocative thesis would have been persuasive. To begin with,
realists in this view must concede that ‘most primary rules (as validated under
[Hart’s] Rule of Recognition) are, indeed, determinate as applied to most
situations’, so that ‘even if in appellate cases the primary rules do not determine
the outcomes’, ‘primary rules do guide most decisions’ and ‘the Rule of Recognition
that validates them’ is – as positivists must insist it to be – not a mere ‘paper rule’,
but rather ‘a social rule’ that properly reflects ‘the real criteria’ of legality embedded
in ‘the actual practice of officials in deciding disputes’ (79). Moreover, the realist
claim of causal legal indeterminacy ‘need make no claim about the concept of law’
(69).
Finally, and perhaps most significantly, thus conceived, the realist position on
rational indeterminacy assumes that ‘statutes and precedents largely exhaust the
authoritative sources of law’, whereas ‘uncodified norms and policy arguments’
are not ‘part of the law’ (72). In thus equating law and doctrine – in assuming, in
other words, that black‐letter law as such determines the content of the law –
realists presuppose a specific positivist theory of law whereby ‘criteria of legality
are exclusively ones of pedigree: a rule (or canon of construction) is part of the law
in virtue of having a source in a legislative enactment or a prior court decision’ (72‐
73). This presupposition of law as strictly defined by pedigreed sources implies
the tacit hard positivism that Leiter attributes to legal realism. Furthermore, given
what Leiter interprets as a ‘hopeless morass of warring conceptual intuitions’ in
the debate between hard and soft positivists, legal realism ends up a posteriori
vindicating hard positivism as ‘the best going [empirical] account of how the
world works’ (133‐35).
10
* * *
As we have seen, Leiter is wrong to understate the realist indeterminacy critique.
His suggestion that realists assume that law means legal doctrine is similarly
mistaken. Admittedly, some realists can be faulted with contributory negligence
for this confusing identification of law with doctrine, when some formulations of
the indeterminacy critique present it as the indeterminacy of law and not of legal
doctrine (45). But a more charitable reading of the realist corpus suggests that,
despite these misleading formulations, legal realism does not equate law with
black‐letter law.24 In fact, discrediting the confusing equation of law with doctrine
is one of American legal realism’s most significant lessons.25
This is a clear lesson from the realist account of law’s dynamism, a hallmark
of legal realism without trace in Leiter’s reconstruction, implying that the legal
community’s prevalent understandings regarding doctrine are bound to be
periodically revisited and, if necessary, changed. These changes may occur, as
noted, even without revision of the pedigreed sources, because legal reform can
reside in our conventional understanding of their respective scope of application.
For realists, legal evolution along these lines is not merely a sociological
observation about law or a recommendation to its carriers. They insist that law
cannot be properly understood – as the above discussion focusing solely on
doctrinal materials may suggest – without considering the operational modalities
of the institutions producing and reproducing these materials. Thus, John Dewey
claims that law is ‘a social process, not something that can said to be done or
happen at a certain date’,26 a statement that, as I argue below, neither need nor
24 Another way to present this understanding is as a hard positivist conception of law in
which there is ultimately only one rule of recognition: the custom (broadly understood) of
the pertinent legal community.
25 Admittedly, if legal doctrine is understood as standing for the contingent conventional
understanding of the pedigreed sources rather than the sources themselves, this charge is
irrelevant. This view of legal doctrine, however, supports my account of legal realism
rather than challenging it. See n 3.
26 J Dewey, ‘My Philosophy of Law’ in My Philosophy of Law: Credos of Sixteen American
Scholars (Fred B. Rothman & Co 1987) 73, 77.
11
should be interpreted as echoing the infamous predictive theory of law. At its best,
law is designed to be a human laboratory constantly seeking improvement in an
‘endless process of testing and retesting’.27 Even where it does not live up to this
ideal, it is ‘a going institution’ that includes a host of people ‘running and ruling
in courses somewhat channeled, with ideas and ideals somewhat controlled’.28
Law is always expressed institutionally and realists are thus attentive to the
various institutions where law is made, applied, interpreted, and developed.29
For legal realists, then, a viable understanding of law must focus on the
dynamics of legal evolution, a proposition that is hardly controversial. Describing
this dynamics at its best and in the context of the specific institution of
adjudication, Llewellyn speaks of it as ‘a functioning harmonization of vision with
tradition, of continuity with growth, of machinery with purpose, of measure with
need’, mediating between ‘the seeming commands of the authorities and the felt
demands of justice’.30 Both the seeming commands of the authorities and the
demands of justice are key elements in the realist account of law’s dynamism. Both
imply that Leiter is wrong to assume that legal realists implicitly equate law with
pedigreed sources; indeed, even insofar as law is manifest in adjudication, realists
not only do not embrace but in fact reject this equation.
Consider first the seeming demands of the authorities. The doctrine’s rational
indeterminacy implies, Llewellyn claims, that the question of whether judges find
the law or make it is ‘meaningless’: judicial decisions are ‘found and recognized, as
well as made’.31 Cases are decided with ‘a desire to move in accordance with the
material as well as within it ... to reveal the latent rather than to impose new form,
much less to obtrude an outside will’.32 Llewellyn is not talking about following
27 BN Cardozo, The Nature of the Judicial Process (Yale UP 1921) 179.
28 KN Llewellyn, ‘My Philosophy of Law’ in My Philosophy of Law (n 26) 183, 18–4.
29 See R Kreitner, ‘Biographing Realist Jurisprudence’ (2010) 35 L & Social Inquiry 765, 580.
30 KN Llewellyn, The Common Law Tradition: Deciding Appeals (Little, Brown & Co 1960)
37–8.
31 ibid 36; KN Llewellyn, ‘Law and the Social Sciences’ in Jurisprudence (n 16) 357, 361–2.
32 Llewellyn, The Common Law Tradition (n 30) 222.
12
precedents or statutory provisions but about an adjudicatory phenomenon he calls
‘the law of fitness and flavor’, whereby each new rule must ‘fit with the feel’ of the
legal doctrine as a whole, and ‘go with the grain rather than across or against it’.33
The case law system imposes a ‘demand for moderate consistency, for reasonable
regularity, for on‐going conscientious effort at integration’.34
Law’s stability is premised on a commitment to begin with the legal envelope
as it is found. Law’s predictability, then, relies on lawyers’ conventional
understandings of the doctrine, that is, on its ‘on‐the‐wall’ meaning at a given time
and place. But realists, who underscore the contingency of these understandings
and their potential transformation, insist that this conservative starting point
should not obscure law’s intrinsic dynamism because ‘in no skillfully built legal
structure is the factor of movement, and of need for movement ... disregarded’.35
Their understanding of law as an evolving institution, or a social process, invites
challenges to the doctrine’s ‘on‐the‐wall’ interpretations, forcing law’s carriers to
intermittently attempt to justify what they would otherwise tend to naturalize.
What follows is a claim re the role of ‘the demands of justice’ as a core feature
of law. Realists view law’s potential dynamism, insofar as it is properly cautious
and timed, as the anchor of our perennial quest for ‘better and best law.’ Our
judges’ ‘duty to justice and adjustment’ consequently implies a relentless ‘re‐
examination and reworking of the heritage’, an ‘on‐going production and
improvement of rules’.36 Contrary to Leiter’s characterization, then, American
legal realists were by no means ‘quietists’.37 They insist that law’s inherent
dynamism implies that law accommodates both tradition and progress, and that
the challenge of legal progress is not only to adjust the law to changed
circumstances but also to overcome its current injustices.
33 ibid 191, 222.
34 ibid 223. See also Llewellyn, Case Law (n 9) 77.
35 KN Llewellyn, ‘The Normative, the Legal, and the Law‐Jobs: The Problem of Juristic
Method’ (1940) 49 Yale LJ 1355, 1385.
36 Llewellyn, The Common Law Tradition (n 30) 36, 38, 190, 217.
37 See also E Ursin, ‘The Missing Normative Dimension in Brien Leiter’s “Reconstructed”
Legal Realism’ (2012) 49 San Diego L Rev 1.
13
Llewellyn does acknowledge that ‘distortion to wrong ends [and] abuse for
profit or favor’ are part of the life of the law, though these are always perceived as
‘desperately bad’ disruptions. Against them, there is ‘in every “legal” structure …
[an implicit] recognition of duty to make good’ – not necessarily in every detail,
but at the level of ‘the Whole of the system in net effect and especially in net intent’.
It is at this level that the law makes ‘necessary contact with justification’ of itself.
This quest for justice – the justification demand – is not merely ‘an ethical demand
upon the system (though it is [also] that)’. Rather, it is ‘an element conceived to be
always and strongly present in urge’, one that cannot be ‘negated by the most
cynical egocentric who ever ran’ the legal system.38
* * *
It is not plausible, therefore, that legal realists are tacit hard positivists. They reject
the law and doctrine equation because, for them, legal reasons include both the
conventional understandings of the doctrinal sources and also (as I further clarify
below) the demands of justice.39 Neither of these features complies with the
signature of hard positivism as per Leiter, namely, its insistence that ‘the criteria
of legal validity … must consist in … facts about pedigree or sources’ (123). Realists
obviously do not deny the claim that, in order to identify the legal doctrine (statutes
and cases), we must rely solely on pedigreed sources. But this claim is startlingly
weak.40 In fact, by recognizing the significant legal work accomplished by other
factors, it implicitly acknowledges their legal status.
Moreover, realists do not refer to other factors simpliciter but argue instead, as
noted, that these additional legal reasons include precisely the type of reasons that
hard positivists exclude, such as ‘ideals of justice’.41 These ideals play an essential
role in the unfolding legal narrative ‘as the criteria for valuing claims, deciding
38 Llewellyn, ‘The Normative’ (n 35) 1385.
39 In this sense, the realist view of law is similar to Dworkin’s. I address these similarities
and also highlight the differences below.
40 See D Priel, ‘Were the Legal Realists Legal Positivists?’ (2008) 27 L and Philosophy 309,
342–3.
41 HE Yntema, ‘The Rational Basis of Legal Science’ (1931) 31 Columbia L Rev 925, 955.
14
upon the intrinsic merit of competing interpretations, choosing from among
possible starting points of legal reasoning or competing analogies, and
determining what is reasonable and just’.42
None of the preceding points necessarily vindicates Hessel Yntema’s outright
rejection of legal realism’s inclusion ‘in the category of positivism’43, a broader
question I consider below. The realist claim of global doctrinal indeterminacy,
however, together with the references to the (potentially changing) conventional
understandings of pedigreed sources and to ideals of justice as the two bases of
law’s content, do imply a sharp divide between legal realism and hard legal
positivism.
4. THE RULE OF LAW AND THE QUEST FOR JUSTICE
While rejecting the hard positivist proposal for delineating the legal domain, the
realist account of legal evolution is attentive to what is for Leiter the most powerful
argument for hard positivism as the sole approach ‘compatible with the possibility
of law possessing authority’: only this conception of law makes it ‘possible to
identify [law’s] directive without reference to the underlying [] reasons’ –
‘including, e.g., moral reasons’ – ‘for that directive’ (129). This argument was
developed by Joseph Raz and can be interpreted in various ways but, for my
current purposes, one interpretation,44 seemingly endorsed by Leiter as well, will
42 R Pound, ‘A Comparison of Ideals in Law’ (1933) 47 Harvard L Rev 1, 2–3. See also HW
Jones, ‘Law and Morality in the Perspective of Legal Realism’ (1961) 61 Columbia L Rev
799, 801, 809; TW Bechtler, ‘American Legal Realism Revaluated’ in TW Bechtler (ed), Law
in Social Context: Liber Amicorum Honouring Professor Lon L. Fuller (Kluwer 1978) 3, 20–1.
43 HE Yntema, ‘Jurisprudence on Parade’ (1941) 39 Michigan L Rev 1154, 1164. See also D
Priel and C Barzun, ‘Legal Realism and Natural Law’ in M Del Mar and M Lobban (eds),
Law in Theory and History: New Essays on a Neglected Dialogue (Hart Publishing 2016) 167.
44 Other interpretations of this claim are admittedly irrelevant here. Thus, if its point is
that law’s authoritative nature implies that it gives reason to φ because it is the law rather
than because φ‐ing is good, then insisting that morality cannot be part of law relies on the
fact that moral reasons do not have the structure of authoritative reasons but are
substantive.
15
suffice. This interpretation is interesting because the realist view of law complies
with it, even though realists do not only not subscribe to hard positivism but
actually reject it.
Leiter prefers hard over soft positivism because soft positivism ‘makes the
identification of law depend on the very reasons that authoritative directives are
supposed to pre‐empt, and thus makes it impossible for the law to fulfil its
function of providing effective guidance’ (129). This emphasis on providing
effective guidance – in turn a prerequisite of the law’s ability to function as law –
is reminiscent of Raz’s account of the rule of law, stating that ‘the law should be
such that people will be able to be guided by it’.45
Yet, though Leiter (and Raz46) hint at the opposite, the rule of law is not
frustrated by the realist understanding of the domain of legal reasons as
particularly capacious. Although the realist claim of radical doctrinal
indeterminacy implies a wide breadth of potential choices, it does not mean that
judges (or, for that matter, any other legal actors) use, should use, or should even
consider using this menu of options in every case. As noted, contrary to their
image in some caricatures of legal realism, realists do not challenge the felt
predictability of doctrine at a given time and place. While insisting that legal
doctrine qua doctrine cannot constrain decision‐makers, they recognize that the
convergence of lawyers’ background understandings at a given time and place
generates a significant measure of stability.
This analysis explains why mainstream legal realists such as Felix Cohen and
Karl Llewellyn did not ignore the obvious flaws in the so‐called predictive theory
of law, notably that it makes no sense for judges addressing legal questions.47
These realists align themselves with Benjamin Cardozo’s critique of ‘the jurists
45 J Raz, The Authority of Law: Essays on Law and Morality (2nd edn, OUP 2009) 213.
46 See, e.g., J Raz, Between Authority and Interpretation: On the Theory of Law and Practical
Reason (OUP 2011) 114–5.
47 See Cohen, ‘Functional Jurisprudence’ (n 17); KN Llewellyn, ‘On Reading and Using the
Newer Jurisprudence’ in Jurisprudence (n 16) 128, 142.
16
who seem to hold that in reality there is no law except the decisions of the courts’.48
Cardozo argues that this position is fallacious because it denies the ‘present’ of
law: ‘[l]aw never is, but is always about to be. It is realized only when embodied
in a judgment, and in being realized, expires’.49 This denial of an existing legal
reality is disproved by our daily experience: ‘[l]aw and obedience to law are facts
confirmed every day to us all in our experience of life. If the result of a definition
is to make them seem to be illusions, so much the worse for the definition’.50
These propositions were shown to be compatible with the realist
indeterminacy critique, as long as it is clear that the real work of determining the
content of the legal doctrine is accomplished through the prevalent
understandings of the legal community regarding doctrine rather than by doctrine
itself. Put differently: legal realism does not threaten the rule of law; it only insists
that the rule of law does not – because it cannot – depend on law’s pedigreed
sources, but relies instead on the social practice of law.51
This social practice also explains Roscoe Pound’s observation regarding the
predictable pattern in the development of legal discourse, which alternates
between periods of fixity and periods of innovation and change. In former times,
‘[p]erfection of scientific system and exposition tends to cut off individual
initiative … to stifle independent consideration of new problems and of new
phases of old problems, and to impose the ideas of one generation upon another’.52
These are the periods of ‘mechanical jurisprudence’ in which ‘artificiality in law’
is regarded as an end and law’s consequences and purposes are not explicitly
48 Cardozo (n 27) 124.
49 ibid 126.
50 ibid 127.
51 cf F Schauer, ‘Editor’s Introduction’ in Karl N Llewellyn, The Theory of Rules, (F Schauer
ed, U of Chicago Press 2011) 1, 5, 7–8, 18, 20–4; RH Fallon Jr, ‘“The Rule of Law” as a
Concept in Constitutional Discourse’ (1997) 97 Columbia L Rev 1, 16–17; MJ Radin,
‘Reconsidering the Rule of Law’ (1989) 69 Boston University L Rev 781, 803.
52 R Pound, ‘Mechanical Jurisprudence’ (1908) 8 Columbia L Rev 605, 606.
17
considered.53 Then, at some point that could (metaphorically) be called a
‘paradigm shift’,54 discontent with the distance between doctrinal discourse
(lawyers’ ‘normal science’) and law’s ends reaches levels that will only be mollified
by breaking this inertia and replacing mechanical jurisprudence with ‘a
jurisprudence of ends’.55 The sequence continues in a pattern of structural
circularity: when a jurisprudence of ends becomes mature and stable, it becomes
canonized and locked in conventional understandings of the legal doctrines and
‘the opportunity for constructive work is largely eliminated’.56
* * *
The legal realist understanding of law thus accommodates a deep commitment to
the rule of law with the ‘factor of movement’ that Llewellyn found indispensable
for law. The doctrine’s conventional understandings tend to be stable in the
service of law’s predictability, and the fact that this stability relies on these
understandings rather than on the pedigreed sources as such creates the space for
law’s dynamic pursuit of justice. The implication is that some legal actors, such as
legislators and judges of appellate courts, should occasionally use new social
developments and cases as triggers for the law’s ongoing refinement, that is, as
opportunities for revisiting the normative viability of the legal doctrine’s existing
understandings.57 When conventional understandings are no longer considered
obvious, arguments about justice no longer serve as only external criteria for
evaluating the law or calling for its reform but, as Llewellyn claimed, are also
53 ibid 607‐8.
54 My reference here to ‘paradigm shift’, and later to ‘normal science’, evokes of course
Thomas Kuhn’s distinction in TS Kuhn, The Structure of Scientific Revolutions (U of Chicago
Press, 1962).
55 Pound (52 n) 611–2.
56 ibid 608.
57 Notice the similarity of this account to Raz’s distinction between the deliberative and
executive stages, which is coextensive with the distinction between cases of unsettled and
settled law. See Raz, Concept of a Legal System (n 15) 213–6. Yet, a crucial difference
obviously prevails: contrary to Raz’s account, realists insist that these distinctions do not
depend on the pedigreed sources but on their contingent conventional understandings.
18
perceived as crucial to arguments about what the law is, namely: what should be
our understanding of the pedigreed sources.58
Making the pursuit of justice a necessary feature of our understanding of law
is important because, as Llewellyn argues, law claims ‘observance, obedience,
authority’ and, therefore, for law to effectively enforce its supremacy is not
enough. Law needs an additional ‘element of recognition that what is done or
commanded or set as imperative or as norm is part of the going order of the
Entirety concerned’.59 Thus, ‘[l]egalistic normation ... has its own sophisticated
claims to being just’ by choosing between conflicting claims ‘in tune with the net
requirements of the Entirety’; law is an arena with a ‘persistent urge to purport to
speak for the Entirety, and, in some measure, to make the purport real’.60 Often,
law‐stuff ‘is neither right nor just’, but law ‘is not brute power exercised at odds
with, or without reference to the going order’.61
58 Although seemingly similar, the realist argument is not one of continuity between
interpretation and moral evaluation (addressed in Raz, Authority and Interpretation (n 46)
116–2). Given doctrinal multiplicity, lawyers’ doctrinal craft inevitably relies on our
conventional understandings, so that once these understandings are destabilized,
doctrinal reasons can no longer work. In order to reconstruct and then internalize a new
understanding of these materials – or, for that matter, to revive an old one – legal actors
need to resort to reasons that transcend doctrine.
59 Llewellyn, ‘The Normative’ (n 35) 1381–3. cf Raz, Authority and Interpretation (n 46) 4–5.
60 Llewellyn, ‘The Normative’ (n 35) 1398–9. Indeed, pace Leiter, legal realists do not
subscribe to the view that ‘reasons of “policy” or of “morality”’ are ‘rationally
indeterminate’ (43, 65). While committed to the constant exposure of beliefs to experience
and to arguments that might overturn them, they insist that there are better (even best)
objective answers to the questions we face. For an account of pragmatism along these
lines, see C Misak, Truth, Politics, Morality: Pragmatism and Deliberation (Routledge 2000) 49,
56–7, 74, 98.
61 Llewellyn, ‘The Normative’ (n 35) 1364, 1367, 1370.
19
5. SOCIAL POWER AND THE SEPARATION THESIS
The realist account of law as a dynamic justificatory practice that evolves along the
lines of fit(ness) and justification makes legal realism a significant precursor of
Ronald Dworkin’s Law’s Empire.62 Both Llewellyn and Dworkin appreciate legal
tradition as an anchor of intelligibility and predictability as well as a potential
source of valuable normative choices; both also understand law as a justificatory
practice that, at its best, continually attempts to recast itself in the best possible
normative light, and both insist that the quest for justice is integral to law. These
similarities highlight Dworkin’s underappreciated debt to legal realism. They do
not, however, render the realist understanding of law as merely an early
incarnation of Dworkin’s because the differences between them are no less
important than their similarities.
While legal realists appreciate, indeed celebrate, law’s quest for justice, they
deplore any view of law that omits reference to its state‐mandated power.63 The
reason law is a profession, says Oliver Wendell Holmes, is that ‘in societies like
ours the command of the public force is entrusted by judges in certain cases, and
the whole power of the state will be put forth, if necessary, to carry out their
judgments and decrees’.64 For legal realists, the role of power in law implies that
law should not be understood only as a ‘system of reason’ and that presentations
of law only in terms of justice and truth, which tend to entrench ‘the majesty got
from ethical associations’,65 should be rejected. Llewellyn therefore insisted on a
sharp distinction between the legal is and the legal ought, which enables – indeed
facilitates – a critical approach to the law. For Llewellyn, this distinction is key if
we are to ‘hold the responsibility for working toward the Right and the Just within
the hard legal frame … to defuse and deconfuse the merely authoritative … from
62 See R Dworkin, Law’s Empire (Belknap Press 1986) 52–3, 164–258.
63 See also W Twining, ‘Other People’s Power: The Bad Man and English Positivism, 1897‐
1997’ (1997) 63 Brooklyn L Rev 189.
64 OW Holmes, ‘The Path of the Law’ in Collected Legal Papers (Harcourt, Brace and Howe
1920) 167, 167.
65 ibid 172–74, 179.
20
the Just or the Right, and to get into the pillory so much of the Law as has no
business to be Law’.66
These critical and reformist emphases of legal realism stand out when
Dworkin’s ideal judge (Hercules), who is presented as the voice of reason and thus
transcending his self‐interest and group affiliation,67 is contrasted with the realists’
more complex portrayal of law’s carriers. As noted, realists do perceive law as a
forum of normative reasoning. These reasons impose real, albeit elusive,
constraints on the choices of legal decision‐makers and thus on the subsequent
implementation of state power. Realists are therefore impatient with attempts to
equate normative reasoning with parochial interests or arbitrary power.68 But they
are also wary of law’s carriers, refusing to treat them as representing the pure voice
of reason. Their suspicions derive from the distinctive nature of judgments issued
by law carriers, as opposed to other normative judgments. In the former case, ‘the
whole power of the state will be put forth, if necessary, to carry out [these]
judgments’.69 Furthermore, these judgment also have a more figurative and less
transparent feature: they tend to essentialize or at least privilege certain contingent
choices, which too often turn out to work for ‘entrenched interests’, thus
legitimizing them and delegitimizing or obscuring the alternatives.70 Hence, while
realists reject the reductive equation of law to sheer power, or interest, or politics,71
66 Llewellyn, ‘The Normative’ (n 35) 1372–3; Llewellyn, ‘Some Realism’ (n 16) 55; KN
Llewellyn, ‘On the Good, the True, the Beautiful in Law’ in Jurisprudence (n 16) 189.
67 See Dworkin (n 62) 259–60.
68 Cf. L Green, ‘Positivism and the Inseparability of Law and Morals’ (2008) 83 New York
UL Rev 1035, 1049.
69 Holmes (n 64) 167.
70 See Cohen, ‘Transcendental Nonsense’ (n 7) 814–8, 840, 827–9; Dewey, ‘Logical Method’
(n 20) 193; LL Jaffe, ‘Law Making by Private Groups’ (1937) 51 Harvard L Rev 212.
71 Reducing law’s reasons to interests or power is also morally irresponsible, since it
undermines both the possibility of criticizing state power and the option of marshalling
the law for morally required social change.
21
they also warn against subsiding or marginalizing the power of law, insisting that,
in any credible account of it, power and reason are fated to coexist.
Integrating power (defined as ‘the capacity to influence people’s actions and
interests’72) into our understanding of law is one of legal realism’s major
contributions. Realists need not deny that power and reason are not on the same
level: power is either a problem – a negative side‐effect of some legal mechanisms
– or a sheer means, whereas reason is neither. But the pervasiveness of power, the
fact that even non‐coercive laws ‘express and channel social power’,73 implies that
legal theorists should not dismiss it as a mere contingent side‐effect that might
impact the implementation of law’s reasons. Legal realists are thus committed to
constantly challenge law, both from within and from without, and wary of
implying that the pace of legal change should always be restrained. These reasons
may also explain the realist caution regarding judicial review and why realists do
not treat the dimension of fit(ness) as a global imperative, seeking instead
coherence at a far more localized level and embracing the structural pluralism of
law,74 which tends to limit its coercive effects.75
* * *
The legal realist case for dissociating law from morality converges with the
normative impetus of the legal positivist claim re the separation of law and
morality: entrenching the notion of law’s fallibility76 reminds us that ‘law can fail
72 L Green, ‘The Forces of Law: Duty, Coercion, and Power’ (2016) 29 Ratio Juris 164, 171.
73 L Green, ‘Introduction’ in HLA Hart, The Concept of Law (PA Bulloch and J Raz eds, OUP
2012) xv, xxxvii.
74 KN Llewellyn, ‘A Realistic Jurisprudence: The Next Step’ in Jurisprudence (n 16) 3, 27–
28, 32; Llewellyn, ‘Some Realism’ (n 16) 59–60; KN Llewellyn, ‘The Current Recapture of
the Grand Tradition’ in Jurisprudence (n 16) 215, 217, 219–20.
75 See H Dagan, ‘Pluralism and Perfectionism in Private Law’ (2012) 112 Columbia L Rev
1409, 1426–7. Indeed, as Leslie Green argues, ‘It is a feature of our concept of law that it
is coercive if necessary, though not necessarily coercive’. Green, ‘Forces’ (n 72) 167.
76 Green, ‘Inseparability’ (n 68) 1056.
22
morally’ and ‘may not justify the moral claims it is making’.77 The separation thesis
is important, indeed crucial, for preserving the capacity for a morally responsible
and morally informed critique of the law.78
Does this mean that legal realists are nonetheless legal positivists? In a sense,
yes. The realist claims indeed imply that only social facts, rather than the content
of justice (or morality), determine legal content and validity.79 Realists reject the
limitation of law’s domain to pedigreed sources imposed by hard positivism.
Furthermore, they show that, at any given moment, law’s content relies on a robust
fabric of conventional understandings rather than on one customary Rule of
Recognition. Nevertheless, realists do support the broader positivist claim that
law is ‘a social practice with contingent moral merit’.80 Understanding legal
realism as a species of legal positivism along these lines seems plausible because
positivists need not – and indeed do not – deny law’s moral task. This task entails
that law’s ‘use of power is answerable to moral standards’, so that the law aspires
to moral content and, furthermore, presents itself as making genuine moral
demands.81
77 Raz, Authority and Interpretation (n 46) 112.
78 See J Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Clarendon
Press 1994) 220; Gardner (n 12) 174; N MacCormick, H.L.A. Hart (Stanford UP 1981) 24–5,
158–60; L Murphy, ‘The Political Question and the Concept of Law’ in J Coleman (ed),
Hartʹs Postscript (OUP 2001) 371, 387–92, 398–9; R West, ‘Three Positivisms’ (1998) 78
Boston UL Rev 791, 792–3, 795. Not all positivists subscribe to the separation thesis. See
Green, ‘Inseparability’ (n 68). Interestingly, however, one of Green’s reasons for
criticizing it is that law is ‘justice‐apt’, namely: ‘is the kind of thing that is apt for inspection
and appraisal in light of justice’. ibid 1050. See also ibid 1054, 1057–8 (identifying the vices
entailed by the emergence of law).
79 For a forceful minimalist account of legal positivism along these lines, see Gardner (n 12)
20–1, 49 (‘legal positivism is a thesis only about the conditions of legal validity’, namely:
that validity of a norm – its membership in a given legal system – does not depend on ‘its
merits (where its merits, in the relevant sense, include the merits of its sources).’).
80 S Hershovits, ‘The End of Jurisprudence’ (2015) 124 Yale LJ 1160, 1195.
81 Raz, Authority and Interpretation (n 46) 1, 177–8, 180.
23
Pigeonholing legal realists as positivists, however, misses a significant

dimension. On the one hand, their view as to what social facts determine legal
content and validity is interesting only in the negative sense of rejecting shortcuts
in its reliance on the broad contingent social practice of law (à la the Rule of
Recognition and its cognates, or hard positivism’s reference to pedigreed sources).
On the other, as shown above, the significant contribution of legal realism goes
beyond the usual positivist position. Realism implies that, when the conventional
understanding of the doctrine loses its obviousness, our moral convictions are converted
from external yardsticks of the law into full‐blown legal arguments. It thus highlights
the irreducible role of appreciated (or known) moral facts – as opposed to both morality
per se and conventional morality – in the social practice of law.82
Capturing the division of labor between (what I metaphorically called) the
normal science of law and its paradigm shift, the realist understanding of law
shows how moral claims are integral to the legal domain, without deserting the
view of law as a social practice. This understanding can thus also accommodate
law’s stability and growth while avoiding the pitfalls of both reductive cynicism
about law and its all‐too‐often unfounded romanticization. These are important
components of the realist legacy, but they do not exhaust the realist contribution
to legal theory.
6. LEGAL REALISM AND NATURALIZED JURISPRUDENCE
To complete the realist ‘big picture’ of law, we need to assess Leiter’s signature
thesis: his account of legal realism as naturalized jurisprudence. In order to
evaluate this thesis, it is helpful to separate the three naturalistic claims that Leiter
attributes to realists: the first one, at the forefront of his account, refers to the causes
of judicial decisions; the others, no less important to his position, relate to the
sources of legal predictability.
The first claim, to which Leiter refers as the ‘Core Claim of Realism’ (21), is
that ‘judges respond primarily to the stimulus of the facts of the case’ (23). Decisions ‘fall
into patterns correlated with the underlying factual scenarios of the disputes in
82 cf Hershovits (n 80) 1195 (‘anti‐positivism is at its best when it explains the role that
morality plays in that practice’).
24
question: it is the judicial response to the “situation type” – i.e., the distinctive
factual pattern – that determines [in this view] the outcome of the case’ (62).
Judges, Leiter argues, do not decide cases based on legal reasons, but rather focus
on ‘the general type of behaviour exemplified by the particular facts’ of the case
and decide based on ‘what would constitute normal or socio‐economically
desirable behavior in the relevant ... context’ (24, 28‐29, 53).
Leiter’s second naturalistic claim seeks to explain how, notwithstanding the
causal indeterminacy of legal reasons discussed earlier, prediction is nonetheless
possible. Leiter reads realists as claiming that ‘judicial decisions fall into
(sociologically) determined patterns’ because judges’ ‘response to the underlying
facts of the case’ is ‘generally shared’ (30). The explanation of these patterns is that
judges’ ‘“sense” of a particular situation’ is shaped by their ‘professional and social
history’; in its course, they formed ‘certain characteristic assumptions about what
is right and fair in such circumstances, based in significant part on [their]
familiarity with the local norms of conduct in that trade or practice’ (23).
From these observations, Leiter deduces his third naturalistic claim, focusing
on legal theorists. ‘Jurisprudence – or, more precisely, the theory of adjudication’,
he argues, should be ‘naturalized’ (40), because in order to ‘discover the real
patterns of judicial decision‐making’, legal theorists must employ ‘the sort of
empirical inquiry modelled on the natural and social sciences’ (90, 31; see also 63).
This proposition suggests a continuity between Leiter’s conception of a properly
naturalized jurisprudence and the social sciences. Although ‘the realists may not
give us paradigms of good empirical studies’ given their unfortunate reliance on ‘a
bad theoretical framework’, he argues, they nonetheless give us good arguments
(mentioned above) ‘in favour of empirical studies’ (54‐55). Moreover, Leiter
further congratulated the realists for their ‘naturalistic research program’ by
reference to their reliance on ‘informal psychological, political and cultural
knowledge about judges and courts’ (56).
Leiter is somewhat ambivalent about this knowledge, which he dubs ‘a “folk”
social scientific theory of adjudication’ (55). Whereas the previous statements
imply that it may be a valuable ingredient in, or a stage towards, a more mature
empirical inquiry (see also 134‐35), he also refers to this ‘folk’ theory as ‘the core of
a naturalized jurisprudence’ (55). Recently, Leiter seems to emphasize (perhaps
25
even celebrate) the distance, rather than the continuity, between legal realism and
contemporary empirical legal studies. Although realists ‘sometimes paid homage
to the social sciences’, he claims, ‘their approach to the facts about what courts do
almost entirely eschewed social scientific inquiries, and for good reasons’.83
Realists applied garden‐variety (that is: lawyerly) ‘sensitive and skeptical reading
of court opinions’ in order to expose the ‘norms that made best sense of the courts’
response to the “situation type”’.84 Thus presented, the realist ‘folk’ theory and
‘sound empirical work on law and the legal system’ are properly regarded as two
distinct and – at least in principle85 independently worthy – endeavors.86
* * *
Consider first Leiter’s second claim, which deals with law’s predictability. Like
others before him, Leiter correctly observes that most realists find ‘the iconoclastic
buggy of an utterly free judicial prerogative [to be] a fantasy or myth’.87 And he is
also right in identifying the source of law’s predictability in facts about the legal
community. Yet, as shown above, the facts that legal realists emphasize here –
those that make law’s contents at times of ‘normal science’ predictable – are more
straightforward than those that Leiter relies upon. Law’s predictability is
premised on the conventional understandings of the doctrinal sources, making
legal insiders, as Stanley Fish put it, extensions of their practice – ‘not only
possessed of but possessed by a knowledge of the ropes’.88
Leiter correctly implies that realists do not share Fish’s view, which reduces
that knowledge to sheer know‐how. Leiter’s first naturalistic claim concerning the
legal realist emphasis on the attentiveness of the legal discourse to context (or
83 B Leiter, ’Legal Realisms, Old and New’ (2013) 47 Valparaiso UL Rev 949, 955.
84 ibid 956–7.
85 The reserved language of the text reflects Leiter’s rebuke of the existing empirical social
science on judicial behaviour (192).
86 Leiter, ‘Realisms, Old and New’ (n 83) 963.
87 AT Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (Harvard UP 1995) 224.
88 S Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary
and Legal Studies (Duke UP 1990) 127.
26
situation sense) provides one distinction between the realist and Fish’s positions.
But this claim must be refined in two ways. First, legal realists do not rest the
predictability of law on the judges’ shared response to factual situations, meaning
they do not assign to the lawyers’ situation sense a significant role in the daily life
of the law. Rather, its importance is mostly manifest when the lawyers’
conventional understandings of the doctrine are (re)shaped. Legal realists
emphasize the significance of lawyers’ unmediated access to human situations and
to actual problems of contemporary life. They highlight the importance of such
situated judgments, which they perceive as an important feature of lawyers’ craft,
for the task of capturing the subtleties of various types of cases and adjusting the
legal treatment to the distinct characteristics of each category.89
Llewellyn, who coined the term ‘situation sense’, is particularly clear on this
front. He criticized the formalist categories that encompass too ‘many
heterogeneous items’ and are thus ‘too big to handle’, recommending instead
‘[t]he making of smaller categories – which may either be sub‐groupings inside the
received categories, or may cut across them’.90 By employing narrower categories,
each covering only relatively few human situations, Llewellyn explains, lawyers
can develop the law while ‘testing it against life‐wisdom’. As he immediately
emphasizes, however, the claim is not that ‘the equities or sense of the particular
case or the particular parties’ should be determinative, but that prescribing the
governing rules for these narrow categories should benefit from ‘the sense and
reason of some significantly seen type of life‐situation’.91
* * *
While the first refinement of Leiter’s naturalistic thesis deals with its times of
operation, the second approaches situation sense as one component in the realist
account of how lawyers’ conventional understandings evolve. Its concern is
lawyers’ craft, and I have discussed elsewhere the reliance of the realist view of
89 See, e.g., H Oliphant, ‘A Return to Stare Decisis’ (1928) 14 American Bar Association J
71, 73–4, 159.
90 Llewellyn, ‘A Realistic Jurisprudence’ (n 74) 27–8. See also Llewellyn, ‘Some Realism’
(n 16) 70.
91 Llewellyn, ‘Current Recapture’ (n 74) 219–20.
27
law on both science and craft. Realists obviously recognize the profound
differences between, on the one hand, lawyers as social engineers who
dispassionately combine empirical knowledge with normative insights, and, on
the other, lawyers as practical reasoners who employ contextual judgment as part
of a process of dialogic adjudication. But they nonetheless insist – or, at least, so I
argued92 – on preserving the difficulty of accommodating science and craft as yet
another tension constitutive of law. (This is, in fact, the third constitutive tension
of law; following the other two – between power and reason and between tradition
and progress – introduced above).
For my current purpose, briefly noting that attentiveness to context is one
feature of the craft side of this equation will suffice. But it is not the only one.
Appreciating the significance of the institutional dimensions of law, realists also
pay attention to the distinctive characteristics of legal institutions and study their
potential virtues while still aware of their possible abuses. This is why, for
example, they tend to celebrate the procedural characteristics of the adversary
process, as well as the professional norms that bind judicial opinions – notably the
requirement of a universalizable justification.93 These characteristics establish the
accountability of law’s carriers to law’s subjects, encouraging them to develop
what Cohen terms ‘a many‐perspectived view of the world’, or a ‘synoptic vision’
that ‘can relieve us of the endless anarchy of one‐eyed vision’.94 Situation sense is
yet another important (and again, potentially virtuous) component of the
characteristic institutional design of the legal drama, which is typically embedded
in a specific human context.
But because legal realists understand law as an instrument,95 which should
92 Dagan, ‘Reconstructing American Legal Realism’ (n 2) 43–59. But see AT Kronman,
‘Jurisprudential Responses to Legal Realism’ (1988) 73 Cornell L Rev 335 and D Priel,
‘Legal Realisms’ (n 43), who present two distinct strands of realists.
93 See Llewellyn, The Common Law Tradition, 46‐48, 132; Llewellyn, ‘American Common
Law Tradition and American Democracy’ in Jurisprudence (n 16) 282, 308–10.
94 FS Cohen, ‘Field Theory and Judicial Logic’ (1950) 25 Yale LJ 238, 242.
95 This does not mean that realists are committed to the view that law has no intrinsic
value.
28
thus be evaluated not only on its own terms, they insist that the law should not be
understood only as a craft. Law affects people’s lives dramatically and, therefore,
both social facts and human values should inform the direction of legal evolution.
Realists thus follow Pound’s prescription for looking at ‘the actual social effects of
legal institutions and legal doctrines’,96 acknowledging the indispensability of
value judgments to all things legal: ‘[t]he problems of the law’, Cohen claimed,
‘have [] an aspect of value, which involves a moral judgment imposed upon the
social facts’.97 Like Cohen, Llewellyn never endorsed a brute empiricist position,
claiming instead that law’s architects should use the information gathered on the
law in action and its impact in society as well as ‘technical data of fact and expert
opinion’ in order to supplement, rather than supplant, the normative aspect of their
judgment.98
These legal realist tenets may explain Leiter’s recent equivocation as per his
third naturalistic claim. Recall that Leiter acknowledges the value of the realist
‘folk’ theory of adjudication, notwithstanding its distance from empirical studies
of law as they are practiced by social scientists. The empirical legal studies Leiter
originally celebrated tend to ‘correlate judicial decisions with the background of
judges’ (43). But if the life of the law is not governed solely by intuitive responses
to facts predetermined by ‘psycho‐social facts’ typical of its carriers (29), then these
studies surely seem, as Leiter does acknowledge (190‐2), overly reductive.99
96 R Pound, ‘The Scope and Purpose of Sociological Jurisprudence’ (1912) 25 Harvard LR
489, 513. See also P Ellsworth and J Jentum, ‘Social Science in Legal Decision‐Making’ in
L Lipson and S Wheeler (eds), Law and the Social Sciences (Russell Sage Foundation 1986)
581.
97 FS Cohen, ‘Modern Ethics and the Law’ (1934) 4 Brooklyn LR 33, 45.
98 Llewellyn, ‘On the Good’ (n 66) 189. As Myres McDougal argued, the realist distinction
between the is and the ought is aimed not at ‘ignoring or dismissing the ought’ but, rather,
at ‘making a future is into an ought for its time’. MS McDougal, ‘Fuller v. The American
Legal Realists: An Intervention’ (1941) 50 Yale LJ 827, 835.
99 This inadequacy can be effectively demonstrated in the work of Richard Posner,
notwithstanding his blunt claim that judicial behavior is best explained by studying ‘what
judges want’. Posner provocatively argues that judges ‘want the same basic goods that
other people want, such as income, power, reputation, respect, self‐respect, and leisure’.
29
* * *
In sum, just like other sophisticated legal actors, sophisticated students of law need
to appreciate its typical institutional dynamics. They should thus understand how
the daily life of the law is stabilized thanks to the conventional understandings of
pedigreed sources within the pertinent legal community. Similarly, they should
study the legal currency that applies when these understandings are (re)shaped:
the power of reasons in law and the respective roles of craft and science as
components of the currency that explains law’s evolution. These lessons entail
profound implications regarding the significance of integrating lawyering skills as
well as some social scientific proficiency into legal education and legal training.
They also illuminate the unique role of bottom‐up inquiries and of cause lawyering
as two potential avenues for upsetting law’s reliance on mechanical jurisprudence
(in turn premised on the conventional understandings of legal doctrines)
triggering its shift into a more morally reflective mode of discourse.100
7. THE REALIST VIEW OF LAW
With these last lessons at hand, we now have an outline of the actual legacy of
American legal realism offering a set of significant insights that both refine and
transcend Leiter’s naturalistic thesis. These insights challenge Leiter’s thesis that
to understand legal realism as a theory of law is mistaken because realists were
only interested in developing a ‘descriptive theory of adjudication, a theory of what
it is that causes courts to decide as they do’ (53, 60, 65, 71).
But then he concludes that what motivates them the most is ‘a taste for being a good judge’,
which ‘requires conformity to the accepted norms of judging’. Judges, says Posner, or at
least ‘[m]ost judges, like most serious artists, are trying to do a “good job”, with what is
“good” being defined by the standards for the “art” in question’, either because they are
motivated by a ‘desire for self‐respect and for respect from other judges and legal
professionals’, or due to ‘the intrinsic satisfactions of judging’. RA Posner, How Judges
Think (Harvard UP 2008) 11–2, 60–1, 371.
100 I discuss and illustrate these implications elsewhere: H Dagan and R Kreitner, ‘The
New Legal Realism and The Realist View of Law’ (2017) L & Social Inquiry (forthcoming).
30
Legal realism cannot be reduced to a descriptive theory of adjudication.
Leiter’s thesis misses not only the legal realist claim that understanding law
requires attention to the wide array of legal institutions beyond the courts. He is
also mistaken when he relegates the ambition of legal realists to the facilitation of
practical lawyers’ prediction mission (unless, of course, we are talking about
sophisticated lawyers who appreciate that, in order to excel in their predictive task,
they need a profound understanding of the nature of law). As the preceding
sections demonstrate, properly interpreted legal realism offers important
contributions to legal theory writ large.
For legal realists, law is a dynamic institution or, more precisely, a set of
institutions embodying three constitutive tensions: between power and reason,
between science and craft, and between tradition and progress.101 What realists
find most distinctive about law is (as noted throughout) the difficult
accommodation of these constitutive tensions.
This claim, which is the core of my own attempt to reconstruct the realist
account of law,102 means that while many contemporary descendants of American
legal realism (Leiter as well as Dworkin, of course, included) helpfully continue
aspects of the realist project by refining and elaborating one realist tenet – be it its
challenge to legal formalism or its account of one of the features that, according to
legal realism, are constitutive of law – they unfortunately lose sight of its core
insight. They thus miss out on its greatest promise: keeping the constitutive
tensions of law constantly before us.
From the perspective of legal realism, law can properly be understood only if
we regain an appreciation of its most distinctive feature: the uneasy but inevitable
accommodation of power and reason, science and craft, and tradition and
progress. This does not mean that all that legal theory can do is highlight law’s
three constitutive tensions, or that the only viable proposition for their coexistence
101 I deliberately use a softer term such as ‘tension’ rather than stronger ones such as
contradiction. These relationships are not contradictory. Yet, although the terms in the
pairs are not antonyms, they each refer to alternative allegiances, to competing states of
mind and perspectives. The difficulty of accommodating them is thus similar to that of
reconciling incommensurable goods or obligations.
102 Dagan, ‘Reconstructing American Legal Realism’ (n 2).
31
is that they should be balanced. Quite the contrary: reconstructing the realist
legacy is valuable not only due to the significance of restoring this understanding
of law’s irreducible complexities, but also by virtue of reinstating this realist
agenda for future research and debate.
* * *
I have previously presented this legacy as a theory or even a conception of law,
but these propositions may have been too quick and possibly hyperbolic,103 at least
if we adopt Raz’s understanding of a theory of law as one that ‘strives to elucidate
law’s essential features, i.e. those features which are possessed by every legal
system just in virtue of being legal’.104 This is a demanding definition, which
implies that the theses of a theory of law must claim to be necessary and thus
universal truths about the nature of law, namely, the characteristics that ‘make law
what it is’ or the ‘properties without which the law would not be law’.105
Does the realist view of law (as per my reconstruction) qualify as a theory of
law? Though I cannot presently hope to do justice to this question, it may
nonetheless be worthwhile to close with preliminary comments on two specific
concerns suggesting it does not. The first asks whether the features highlighted
by the realist view of law are necessary conditions; the second wonders whether
they are sufficient. Even though the specific concerns I will raise under these two
headings do not exhaust the demands of Raz’s definition, and although my
responses are not definitive, I hope that these comments will at least vindicate a
more modest conclusion: the revival of legal realism holds the promise of
substantial contributions to legal theory.
103 This is not the only necessary refinement of my earlier work. I have also used this
opportunity to abandon the misguided practice of using the terms coercion and power
interchangeably and to refine my accounts of the realist indeterminacy critique and of the
relationship of legal realism and legal positivism.
104 Raz, Authority and Interpretation (n 46) 92. I do not mean to imply that Raz is the only
legal theorist who adheres to this understanding of the enterprise, or to dismiss its
critiques.
105 ibid 17, 24–5, 92.
32
Consider first the concern that, by delving into law’s possible virtues – its
drive for justification and its recourse to both craft and science in attempting to
comply with this heavy burden – the realist view of law sets excessive demands
for a theory that is supposed to apply broadly and account not only for law’s most
glorious manifestations. Surely, the law can still be law even if its carriers fail, for
example, to properly investigate the social effects of a doctrine’s conventional
understanding when they open it up for reassessment, or if they do not sufficiently
probe into its justice. I have no qualms with these propositions, but I also think
they do not necessarily threaten the putative status of legal realism as legal theory.
The reason is that, given their rejection of a rosy view of the law, the realists’
reference to craft and science should be understood merely as a means that law
can (and should) use when confronting the justification challenge. In the realist
view, then, only this challenge (rather than this means) is a necessary feature of
law. Integrating the justification challenge (and thus the significance of the typical
means of coping with it) into a theory of law is acceptable, and perhaps even
necessary, if we accept Julie Dickson’s suggestion that understanding the nature
of law may well require us ‘to identify and understand’ not only what the law is,
but also ‘what law aims to be and ought to be’ as well as the ‘standards by which
it should be judged’. These additional elements, however, need not (and do not)
imply ‘that purported instances of law which do not perform that task and do not
realize those values are not, or are not really, law at all’.106
I now turn to the concern that the realist view of law is too broad, that it may
be attractive precisely because it remains uncontroversial by offering too big a tent
that allows otherwise conflicting views of law to coexist. This concern may seem
destructive if implying that the realist view of law is trivial or meaningless. Yet
again, however, this charge is unjustified. Even if the realist account of law does
not spell out the sufficient conditions for the existence of law, it may still serve to
clarify the inadequacy of reductionist understandings of law. Thus, even if realists
do not tell us what law necessarily is, they still offer important insights as to what
it is not: law is neither brute power nor pure reason; it is neither only a science nor
106 J Dickson, ‘Is Bad Law Still Law? Is Bad Law Really Law?’ in M Del Mar and Z
Bankowski (eds), Law as Institutional Normative Order (Ashgate 2009) 161, 169. See also
ibid 170, 174.
33
merely a craft, and it is neither exhausted by reference to its past nor adequately
grasped by an exclusively future‐oriented perspective. Legal realism insists that
contemporary schools governed (typically implicitly) by such monistic
understandings of law are hopelessly deficient.107 It further implies that a
conception of law purporting to dissolve law’s constitutive tensions would merely
obscure at least one of the legal phenomenon’s irreducible characteristics. These
lessons, as I show elsewhere, also point to a promising account of law’s added
value as an academic discipline vis‐à‐vis other discourses about law, including the
social scientific ones mentioned by Leiter.108 Finally, recall that realists, rather than
of state institutions, speak of a set of institutions typified by the three constitutive
tensions above simpliciter. Therefore, insofar as the element supposedly missing
from the realist account is the mutual dependence of law and the state or other
forms of political community109, it is clearly not a deficiency, especially in an era
that increasingly acknowledges both trans‐statist and sub‐statist forms of law.110
107 It also, as discussed earlier in some detail, finds positivism seriously inadequate.
108 See H Dagan, ‘Law as an Academic Discipline’ in S Van Praagh and H Dedek (eds),
Stateless Law: Evolving Boundaries of A Discipline (Ashgate 2015) 43; H Dagan, R Kreitner
and T Kricheli‐Katz, ‘Legal Theory for Legal Empiricists’ (2017) L & Social Inquiry
(forthcoming).
109 See Raz, Authority and Interpretation (n 46) 101.
110 See J Raz, ‘Why the State?’ in N Roughan and A Halpin (eds), In Pursuit of Pluralist
Jurisprudence (CUP 2017) (forthcoming).
34

T R L A L R: HE EAL Egacy of Merican Egal Ealism

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OXFORD JOURNAL OF LEGAL STUDIES (forthcoming)

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Pigeonholing legal realists as positivists, however, misses a significant

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