David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
Learn more about PhilPapers
Law and Philosophy 30 (4):381-418 (2011)
In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past. The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed. The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist theory. Leiter’s reading is vulnerable, because he fails to discuss in detail those passages from the realists that inspired past interpretations. My goal is to see how Leiter’s reading fares when these passages are considered. I argue that Leiter is right that the realists’ indeterminacy thesis has only a local scope. Those passages that appear to claim that the law is globally indeterminate actually address three other topics: judicial supremacy, judges’ roles as finders of fact, and the moral obligation to adjudicate as the law commands. With respect to the prediction theory, however, I conclude that Leiter’s position cannot be defended. Indeed the realists offered two “prediction” theories of law. According to the first, which is best described as a decision theory, the law concerning an event is whatever concrete judgment a court will issue when the event is litigated. According to the second, the law is reduced, not to concrete judgments, but to regularities of judicial (and other official) behavior in a jurisdiction. I end this essay with the suggestion that the realists’ advocacy of the second prediction theory indirectly vindicates Leiter’s reading of the realists as prescient jurisprudential naturalists.
|Keywords||Brian Leiter Legal Realism Legal Positivism|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Mark Greenberg (2011). Implications of Indeterminacy: Naturalism in Epistemology and the Philosophy of Law II. [REVIEW] Law and Philosophy 30 (4):453-476.
Mark Greenberg (2011). Naturalism in Epistemology and the Philosophy of Law. Law and Philosophy 30 (4):419-451.
Jules L. Coleman & Brian Leiter (1996). Legal Positivism. In Dennis M. Patterson (ed.), A Companion to Philosophy of Law and Legal Theory. Blackwell Publishers
Brian Leiter (2005). American Legal Realism. In Martin P. Golding & William A. Edmundson (eds.), The Blackwell Guide to the Philosophy of Law and Legal Theory. Blackwell Pub.
Brian Leiter (2007). Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy. Oxford University Press.
Matthew H. Kramer (2009). Brian Leiter: Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy. Criminal Law and Philosophy 3 (1):107-110.
Brian Leiter (2001). Legal Realism and Legal Positivism Reconsidered. Ethics 111 (2):278-301.
Brian Leiter (2011). Naturalized Jurisprudence and American Legal Realism Revisited. Law and Philosophy 30 (4):499-516.
Brian Leiter (2009). Naturalizing Jurisprudence. In John R. Shook & Paul Kurtz (eds.), The Future of Naturalism. Humanity Books
Wouter de Been (2008). Legal Realism Regained: Saving Realism From Critical Acclaim. Stanford Law Books.
V. Rodriguez-Blanco (2008). Review: Brian Leiter: Naturalising Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy. [REVIEW] Mind 117 (468):1091-1094.
Robin Bradley Kar (2009). Review of Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy. [REVIEW] Notre Dame Philosophical Reviews 2009 (7).
Jules L. Coleman (2001). The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory. Oxford University Press.
Brian Leiter & Michael Weisberg (2010). Why Evolutionary Biology is (so Far) Irrelevant to Legal Regulation. Law and Philosophy 29 (1):31-74.
Added to index2011-04-09
Total downloads30 ( #131,124 of 1,796,448 )
Recent downloads (6 months)2 ( #347,907 of 1,796,448 )
How can I increase my downloads?