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  • The Realist Conception of Law
  • Hanoch Dagan (bio)

I Introduction

The conviction that legal realism has transformed American legal discourse is widely shared.1 Yet, for many readers, the idea of a realist conception of law - the title of this article - may seem an oxymoron. Some may remember Ronald Dworkin's description of legal realism as nominalism.2 These readers must wonder how I can claim that nominalists, who reduce phenomena to their singular manifestations, have anything to contribute to the conceptual analysis of law. Others may associate legal realism with a crude revolt again formalism,3 implying that the only (putative) contribution of legal realism to law is deconstructive. Again, if legal realism stands only for anti-formalism, there can be no realist conception of law.

Still other readers may criticize my title for the opposite reason, namely, the suggestion that there is one singular realist conception of law rather than many. These readers may point to the variety of contemporary jurisprudential schools - notably law and economics and critical legal studies - that either claim to be or are portrayed as true descendants of legal realism.4 They may further allude to the fierce rivalry [End Page 607] among these schools, which reflects significant disagreements about the nature of law.5 Because these disagreements are real, legal realism must be, at best, an eclectic and potentially incoherent set of rudimentary ideas about law, which inevitably come into sharp conflict once they are properly fleshed out (a task left to the legal realists' successors).6 These readers may thus reach the same unflattering conclusion, namely, that the idea of reconstructing a realist conception of law is deeply perplexing.

If all that legal realism stands for is nominalism, sheer critique, or incoherent eclecticism, looking for the realist conception of law does not make much sense. Even more charitable accounts of legal realism, which do attribute to it some core wisdom about the nature of law, are likely to share the view that seeking to revive its jurisprudential lessons is futile. These accounts imply that the realist vision of law is basically reducible to one or another more or less known jurisprudential school, be it empirical social science,7 pragmatic Instrumentalism,8 critical legal studies,9 old-fashioned nihilism,10 or philosophical anarchism. 11 But contemporary students of these divergent schools tend to present richer and more sophisticated accounts of their approaches than the ones that can be distilled from the realist literature. Therefore, apart from the (surely important) goal of setting the historical record right, the contemporary benefits of studying legal realism seem rather marginal.

As the title of this article suggests, I beg to differ, and I will argue that legal realism offers important, unique, and by now mostly forgotten jurisprudential insights. This article demonstrates that legal realism [End Page 608] offers a specific conception of law irreducible to any other.12 My reconstruction of this realist legacy is not intended as a piece of intellectual history. I am not concerned here with tracing the intellectual roots of realist ideas,13 with evaluating legal realism as a historical movement, 14 or with assessing the scholarship of any given realist scholar.15 Instead, my purpose is to present a useful interpretation of legal realism, drawing out from the realist texts a vision of law that is currently relevant - indeed, valuable.16 With this aim in mind, I ignore the many excesses (and some sheer follies) found in realist literature and read these texts in the best possible light.17 The same approach informs my interpretation of the texts I use and guides me in their selection and the emphases I ascribe to them.18 This charitable perspective on realism further explains why I focus on some authors, particularly Oliver Wendell Holmes, Benjamin Cardozo, Karl Llewellyn, and Felix [End Page 609] Cohen,19 and marginalize others, notably Jerome Frank and Thurman Arnold.20

In my reconstructed realist conception, law is conceived as a dynamic institution that embodies three sets of constitutive tensions: between power and reason, science and craft, and tradition and progress. In the realist conception, what is most distinctive about law is the difficult accommodation of these constitutive tensions. Law is...


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