Legal realism

the law in action, not the law in books, as the subject matter of legal analysis

pp. 145-163

in: Raimo Siltala, Law, truth, and reason, Berlin, Springer, 2011

Abstract

Scientific realism and legal realism are two different issues. Scientific realism can be defined with the ontological, semantic, epistemological, methodological, axiological, and ethical tenets involved, plus realism in scientific theory construction and concept formation. Legal realism or realism in the context of law, on the other hand, refers to a set of intellectual movements with emphasis on the sociological, empirical, and "realist" tenets in legal analysis that share the two tenets of critique of legal formalism and the idea of law as a social fact, and not a social or moral ideal. The American and Scandinavian schools of legal realism are briefly considered. Moreover, Alf Ross' idea of the normative ideology collectively and more or less uniformly adopted by the judiciary and H. L. A. Hart's parallel idea of the ultimate rule of recognition as collectively acknowledged by the judges and other officials both bear the impact of a realist account of law. Though Hart is usually labelled as a representative of (analytical) legal positivism, the rule of recognition, when defined as "as a complex, but normally concordant, practice of the courts, officials, and private persons in identifying the law by reference to certain criteria", carries a patently realist tint in it. Still, a fully realist stance on law cannot stand on its own, self-defined criteria, any more than a fully positivist account of law can so do. The formal validity of law, as defined by analytical legal positivism, and the efficient enforcement of law, as defined by analytical legal realism, lean on and presuppose the presence of the other approach to the law.