Jurisprudence (forthcoming)

David Frydrych
Monash University
Several scholars advance the ‘LR-LP thesis’: the claim that American Legal Realism presupposes Legal Positivism. Brian Leiter and Frederick Schauer, prominent scholars of Realism, delimit that thesis to a Razian version of Exclusive Legal Positivism (‘ELP’). This article nevertheless argues that Leiter and Schauer’s respective accounts of Legal Realism are difficult to square with Razian ELP. Indeed, the Realist hypotheses about alternative drivers of official decision, concerning ‘working’ rules, ‘real’ rules, and ‘situation-types’, if correct, actually threaten Razian ELP. Problems arise for the LR-LP thesis (as delimited to Razian ELP) irrespective of whether those three Realist alternative drivers are classified as legal or non-legal norms. If they are non-legal, merits-based norms, then (a) those alternative drivers do much more work within official decision than ELP suggests is the case for those sorts of norms, and (b), Inclusive Legal Positivism may better, and might even be required, to explain them. Alternatively, if those Realist alternative drivers are better understood as source-based legal norms, then they cannot fulfil (or even be claimed by the law to fulfil) certain core functions that ELP attributes to legal norms.
Keywords legal realism, jurisprudence, legal philosophy, legal theory, Karl Llewellyn, judicial decision-making
Categories (categorize this paper)
DOI 10.1080/20403313.2022.2090752
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

PhilArchive copy

Upload a copy of this paper     Check publisher's policy     Papers currently archived: 71,355
External links

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.

Add more references

Citations of this work BETA

No citations found.

Add more citations

Similar books and articles

Legal Realism and 'Working' Rules.David Frydrych - 2022 - Canadian Journal of Law and Jurisprudence 35 (2):321-364.
Legal Realism and Legal Positivism.Adam Dyrda - 2018 - Avant: Trends in Interdisciplinary Studies 9 (1):47-66.
Legal Realism & Judicial Decision-Making.Vitalius Tumonis - 2012 - Jurisprudencija: Mokslo darbu žurnalas 19 (4):1361-1382.
Karl Llewellyn and the Realist Movement.William Twining - 2012 - Cambridge University Press.
22 Atmospherics: Abortion Law and Philosophy.Anita L. Allen - 2009 - In Francis J. Mootz (ed.), On Philosophy in American Law. Cambridge University Press. pp. 184.
Legal Realism Through British Eyes.Neil Duxbury - 1992 - Faculty of Law, University of Toronto.


Added to PP index

Total views
1 ( #1,552,539 of 2,519,514 )

Recent downloads (6 months)
1 ( #407,153 of 2,519,514 )

How can I increase my downloads?


Sorry, there are not enough data points to plot this chart.

My notes