Legal Realism and Legal Positivism

• Main Author: Adam Dyrda
• Format: Article
• Language: English
• Published: Centre for Philosophical Research 2018-04-01
• Series: Avant: Journal of Philosophical-Interdisciplinary Vanguard
• Subjects: legal positivism; American legal realism; legal truisms; general theory of law; theory of adjudication; Brian Leiter
• Online Access: http://avant.edu.pl/wp-content/uploads/Dyrda-Realizm-prawniczy.pdf

American legal realism is commonly treated as a theory-pariah. The article exposes certain reasons explaining such a treatment. Generally, it seems that such an attitude is a result of many misunderstandings of realist aims and ambitions, some of which pertain to the theoretical status of legal realism and its relation to so called general jurisprudential theories, such as legal positivism. In the first part of the article I explain generally what these aims were and how one should see these relations. In the second part I briefly analyze B. Leiter’s famous claim that legal realism is conceptually dependent on hard legal positivism (as a general theory of law). The critique of this claim opens the possibility for some alternative understanding of legal realism.