Normative jurisprudence and legal realism

Hanoch Dagan*

*Corresponding author for this work

Research output: Contribution to journalReview articlepeer-review

Abstract

This review article examines Robin West's provocative new book Normative Jurisprudence: An Introduction. West provides a learned and sophisticated account of the decay of the three major jurisprudential traditions of North American legal theory: natural law, legal positivism, and critical legal studies, which leads to and is motivated by a spirited plea for the reinvigoration of distinctively legal normative scholarship. Her proposed genealogy is valuable and her preliminary blueprint for reform important. But I believe that both fronts can be significantly enriched by a more charitable reading of legal realism than the one she (briefly) provides. Thus, this review offers a competing genealogical account of the three contemporary approaches to law West criticizes, claiming that, like critical scholars, promoters of institutional fit and of economic efficiency are also intellectual descendants of legal realism. Legal realism, I insist, provides a subtle conception of law as a set of institutions distinguished by the irreducible cohabitation of power and reason, science and craft, tradition and progress. This conception, which was torn apart by the realists' heirs, offers the key to a proper cure for the predicament West identifies by pointing to a robust understanding of legal theory and thus of the distinctive contribution legal scholars can make in normative debates.

Original languageEnglish
Pages (from-to)442-457
Number of pages16
JournalUniversity of Toronto Law Journal
Volume64
Issue number3
DOIs
StatePublished - 1 Jan 2014

Keywords

  • Ronald Dworkin
  • critical legal studies
  • economic analysis of law
  • legal normativity
  • legal realism

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