Dan Priel, Osgoode Hall Law School, has posted The Political Theories of the Legal Realists:
A popular view about the legal realists is that, either knowingly or inadvertently, they advanced ideas inconsistent with traditional values, democracy, and the rule of law. Another view about them suggested that the realists had no political theory: they only offered a descriptive (empirical) theory of adjudication, albeit one that has normatively "quietist" implications. In this essay, I challenge both views. I argue that there were two legal realist camps whose jurisprudential ideas presupposed two quite different political theories. One group of legal realists consisted of public utilitarians who were consciously inspired by Bentham, wanted to turn legal and political theory into a science, and who thought law should be evaluated by its ability to increase social welfare. The other group had a very different political theory underlying its approach to law. For these legal realists, law was a traditionary institution, which should reflect, and be continuous with, community customs and values. After showing these different views, I show their relevance to contemporary debates in different areas of law.
Jerome Frank, with William Douglas (LC)
--Dan Ernst
