Getting Real or Staying Positive: Legal Realism(s), Legal Positivism and the Prospects of Naturalism in Jurisprudence

• Published date: 01 December 2016
• Author: Jakob v. H. Holtermann
• DOI: http://doi.org/10.1111/raju.12071
• Date: 01 December 2016

Getting Real or Staying Positive:

Legal Realism(s), Legal Positivism

and the Prospects of Naturalism

in Jurisprudence*

JAKOB V. H. HOLTERMANN

Abstract. The relationship between Legal Realism and Legal Positivism has been a

recurrent source of debate. The question has been further complicated by the

related difficulty of assessing the internal relationship between the two main

original strands of Legal Realism: American and Scandinavian. This paper suggests

considering American and Scandinavian Realism as instantiations of forward-looking

and backward-looking rule skepticism respectively. This distinction brings into sharp

relief not only the fundamentally different relationship between each of these two

Realist schools and Legal Positivism but also their equally different potentials as

starting points for naturalizing jurisprudence.

1. Introduction

The relationship between Legal Realism and Legal Positivism has been a constant

source of debate since the emergence of Realist theories in the first half of the

twentieth century. The discussion has been further complicated by the related

difficulty of assessing the internal relationship between the two main original

strands of Legal Realism: American and Scandinavian.

More is at stake in this debate than taxonomic neatness. At stake are wide-

reaching methodological questions as to what kind of a science the study of law

should be according to Legal Realism. These questions are often formulated in a

modern context as questions about the potential for naturalism in legal science, i.e.

* An earlier version of this paper was presented at the conference “New Frontiers of Legal

Realism: American, Scandinavian, European, Global” at the Carlsberg Academy in Copen-

hagen, 29–30 May 2012. I am grateful to participants in the conference for rewarding

discussion. In particular, I recall valuable comments from Victoria Nourse, Gregory Shaffer,

Brian Leiter, Mikael Rask Madsen, Henrik Palmer Olsen, Torben Spaak, and Frederick

Schauer. I am also grateful to Enrico Pattaro for highly valuable comments. This research is

funded by the Danish National Research Foundation Grant no. DNRF105 and conducted

under the auspices of the Danish National Research Foundation’s Centre of Excellence for

International Courts (iCourts).

Ratio Juris. Vol. •• No. •• •• 2015 (••–••)

© 2015 The Author. Ratio Juris © 2015 John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main

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THE NOTEBOOK CORNER

* An earlier version of this paper was presented at the conference “New Frontiers of Legal

Realism: American, Scandinavian, European, Global” at the Carlsberg Academy in Copenha-

gen, 29–30 May 2012. I am grateful to participants at the conference for rewarding

discussion. In particular, I recall valuable comments from Victoria Nourse, Gregory Shaffer,

Brian Leiter, Mikael Rask Madsen, Henrik Palmer Olsen, Torben Spaak, and Frederick

Schauer. I am also grateful to Enrico Pattaro for highly valuable comments. This research is

funded by the Danish National Research Foundation Grant no. DNRF105 and conducted

under the auspices of the Danish National Research Foundation’s Centre of Excellence for

International Courts (iCourts).

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C2015 The Author. Ratio Juris V

C2015 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main

Street, Malden 02148, USA.

Ratio Juris. Vol. 29 No. 4 December 2016 (535–555)

for associating the study of law with the ongoing empirical turn in epistemology

and philosophy of science which implies that these previously a priori disciplines

be transformed into empirical knowledge and science studies under the slogan:

“Out of the armchair and into the field!” (Dennett 1988).

Much confusion in the present debate seems to stem from a failure to correctly

identify the kind of rule-skepticism underlying Realism—or from the related failure

to correctly identify possible differences on this issue between the two kinds of

Realism. The canonical understanding of the rule-skepticism of Legal Realism has

become known in the literature as conceptual rule-skepticism. It was Hart who

originally ascribed this view to Legal Realism (see Hart 1959, 1994), and he is also

the one who has been credited with formulating a decisive argument against it.

According to Hart, conceptual rule-skepticism is the view that:

all talk of rules, and the corresponding words like ‘must’, ‘ought’, and ‘should’, is fraught

with a confusion which perhaps enhances their importance in men’s eyes but has no rational

basis. We merely think, so such critics claim, that there is something in the rule which binds

us to do certain things and guides or justifies us in doing them, but this is an illusion even

if it is a useful one. All that there is, over and above the clear ascertainable facts of group

behaviour and predictable reaction to deviation, are our own powerful “feelings” of com-

pulsion to behave in accordance with the rule and to act against those who do not. (Hart 1994,

11)

Specifically with regard to legal rules, conceptual rule-skepticism is the view “that

to assert the validity of a rule is to predict that it will be enforced by courts or some

other official action taken” (Hart 1994, 104).1

The problem with this kind of rule-skepticism which Hart pointed to is that it

leaves legal theory incapable of explaining how rules function in judicial decisions:

This cannot be its meaning in the mouth of a judge who is not engaged in predicting his own

or others’ behaviour or feelings. “This is a valid rule of law” said by a judge is an act of

recognition; in saying it he recognises the rule in question as one satisfying certain general

criteria for admission as a rule of the system and as a legal standard of behaviour. (Hart 1959,

237)2

This criticism launched by Hart has been extremely influential, and it arguably

bears a considerable part of the responsibility for the somewhat marginalized role

played by Legal Realism since then, at least in philosophical circles. In the present

context it may also be conceded, at least for the sake of argument, that Hart’s

famous argument is actually aimed at the kind of “conceptual rule-skepticism” he

described above. The only problem is that the argument is fundamentally mis-

guided qua criticism of both American and Scandinavian Legal Realism. It is

misguided mainly because Hart fails with this account to adequately capture the

1See also e.g. Hart 1994, 136–7. Ascribing this view to legal Realism seems at least

superficially well motivated in that it takes its cues from central quotes in the Realist

literature. See e.g. Holmes (1897, 461) and Karl N. Llewellyn (2008, 7) with regard to American

Legal Realism, and Ross (1953, 55 / 1958, 42) with regard to Scandinavian Legal Realism.

(Ross’s main work Om ret og retfærdighed was first published in Danish in 1953. The work

appeared in English as On Law and Justice in 1958. I use the forward slash (“/”) to indicate

references to two editions of the same work. Thus, Ross 1953, 55 / 1958, 42 refers to the same

place in the Danish edition and the English-language edition.

2See also Hart 1994, 105.

2Jakob v. H. Holtermann

© 2015 The Author. Ratio Juris © 2015 John Wiley & Sons Ltd. Ratio Juris, Vol. ••, No. ••

536 Jakob v. H. Holtermann

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