The Limits of Legal Realism

This article will address some criticisms of legal realism, primarily those of H.L.A. Hart, that have been unanswered in the literature and have appeared to discredit the realist approach to law. The article will also articulate what I believe to be more difficult problems with legal realism. Tags: Legal realism, positivism, judicial decisions, H.L.A. Hart [pg468]** Holmes launched the highly successful American school of legal realism with his remark that "law" consists of "prophecies of what the courts will do in fact." [FN1] Later writers amended this proposition to include all officials, since decisions by judges constitute only a fraction of authoritative decisionmaking. [FN2] In its heyday, realism stimulated many proposals for legal reform and social change; [FN3] it also alerted students of the law to the effectiveness of arguments appealing to values, even if such arguments were not to be found in the decisions of appellate courts or in other "materials" traditionally used in law schools. The liberating perspective on legal processes offered by realism can still excite students of law. This article, however, will not restate the tenets of legal realism or reevaluate it from traditional perspectives. [FN4] Rather, it will address some recent criticisms of legal realism, primarily those of H.L.A. Hart, that have been unanswered in the literature and have appeared to discredit the realist approach to law. The article will also articulate what I believe to be more difficult problems with legal realism. Thus I shall attempt first to give realism its due by extending it to the "limits of its logic." I shall then explore whether that extension can carry us to a full understanding of "law" or whether other limiting considerations intervene before that point can be reached. I. A Realist's World View A. "Rules" and "Reasons" 1. What the Puzzled Man Wants to Know The first step is to sketch a thoroughly "realistic" portrait of a legal system. Start with a person, call him K, who lives in any country in the [pg469] world. As he looks around, he notices that the public order is maintained by people who either wear official uniforms or who proclaim themselves, in some manner that the public recognizes and accepts, as agents of the state. These agents often have a license to carry firearms, and all of the agents constitute the firearmslicensing authority. Some wear robes and sit as "judges"; some wear civilian clothes and sit behind desks in government buildings. As a group they control various institutions that have the power to investigate facts, to confiscate property, to question, arrest, incarcerate, and (in certain cases) execute citizens, and to engage in other forceful acts without fear of punishment from any higher or stronger group within the same territory. These agents of the state may be called officials or hirelings or co-conspirators. Since they control the physical power of the state, K naturally would like to know how to conduct his affairs so that the officials will not oppose, and perhaps will even cooperate with, his plans. These state officials are characteristically present in any modern nation. They may have just