Legal Realism, Legal Interpretivism, Holmes and Nietzsche
| Abstract |
Two new legal philosophies took shape in the twentieth century, legal realism and legal interpretivism. Legal realists are skeptical of law and the legal reasoning done in courts. Ronald Dworkin’s philosophy, legal interpretivism, views legal reasoning as part of the coherent narrative that justifies the role of law in society. The realist movement is often traced to the philosophy of Oliver Wendell Holmes, Jr., whose thinking bears similarities to that of Friedrich Nietzsche. Taking Jerome Frank’s philosophy as the epitome of legal realism, I argue that Holmes and Nietzsche would prefer Dworkin’s legal interpretivism rather than Frank’s legal realism. This project illuminates the differences between Dworkin and Frank, as well as showing a realist lineage in Dworkin. This ultimately makes interpretivism a more palatable philosophy to Holmes and Nietzsche, who, when given a sympathetic exegesis, have more subtle, nuanced views of law
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