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Abstract:

“The American legal realists are still widely held to have believed that law is deeply indeterminate, and that therefore judges are largely free to decide cases any way they want. This view prevails despite attempts by different legal theorists to offer a more refined understanding of their views. Most prominent among those has been Brian Leiter who has argued that the legal realists offered a descriptive theory of adjudication, that they were normative quietists, and that their views presupposed legal positivism. I challenge both the popular perception of the legal realists as jurisprudential radicals, as well as their characterization as normative quietists and legal positivists. I argue instead that we should situate the legal realists within a thoroughly normative jurisprudential tradition that challenges the attempts to provide a neutral and universal account of law by understanding law as an inherently human practice developed in response to human needs.”