Brian Leiter on 'Legal Positivism as a Realist Theory of Law'

Speaker

Professor Brian Leiter (University of Chicago)

Abstract

By realist theories of law, I mean theories which:  (1) describe without sentimental or moralizing illusions what law is and how it actually operates in human societies (descriptive adequacy takes priority over moralizing sermons); (2) recognize that law is never adequate to explain how courts adjudicate all cases that come before them; and (3) account for law and adjudication within the constraints of a naturalistic theory of the world, i.e., one that eschews appeal to any entities or properties that do not find a place in successful empirical scientific accounts of natural and social phenomena.   Both the American and Scandinavian (self-identified) "legal realists" were proponents of realist theories of law in this sense, albeit in very different ways, a point to which I return.   Hart was a critic of both American and Scandinavian legal realisms, though in both cases he missed his mark.  The irony is that Hart's legal positivism is also a realist theory of law, and once we sort out the misunderstandings and confusions, it will be clear that legal positivists and realists form a unified theoretical front against the moralizing and ideological obfuscators about law, from Lon Fuller to Ronald Dworkin.   It will also turn out that one of Raz's additions to Hart's theory, namely, the idea that law necessarily claims authority in Raz's "Service Conception" sense, betrays the realist ambitions of Hart's theory.

About the Speaker

Brian Leiter (JD, PhD, Michigan) joined the University of Chicago faculty in 2008-09, where he is now the Karl N. Llewellyn Professor of Jurisprudence and the Founder and Director of the new Center for Law, Philosophy, and Human Values. From 1995 until joining the Chicago faculty, he taught law and philosophy at the University of Texas at Austin, where he was at the time the youngest chair-holder in the history of the Law School and also the founder and director of the University of Texas Law and Philosophy Program. He has also been a Visiting Professor at Yale University (Law), University College London (Philosophy), University of Paris X-Nanterre (Law), and Oxford University (Philosophy). He is the founding editor of Oxford Studies in the Philosophy of Law (with Leslie Green) and of the Routledge Philosophers book series; he was co-editor of the journal Legal Theory from 2000-2008. He is the author of four books— Nietzsche on Morality (Routledge, 2002; 2nd ed. 2015), the leading defense of reading Nietzsche as a philosophical naturalist; Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford University Press, 2007); Why Tolerate Religion? (Princeton University Press, 2013) and Moral Psychology with Nietzsche (Oxford University Press, 2019)—and editor of six others, including Objectivity in Law and Morals (Cambridge University Press, 2001), The Future for Philosophy (Oxford: Clarendon Press, 2004), and The Oxford Handbook of Continental Philosophy (Oxford University Press, 2007) (with Michael Rosen). His articles have appeared in Ethics, European Journal of Philosophy, Oxford Studies in Metaethics, Times Literary Supplement, Yale Law Journal, Oxford Journal of Legal Studies, Columbia Law Review, Stanford Law Review, Social Philosophy & Policy, Journal of the History of Philosophy, Philosophers’ Imprint and elsewhere. His work has been translated into Spanish, French, Italian, Chinese, Russian, Portuguese, Hebrew, Polish, Slovak, and Greek. He has delivered named lectures at universities around the world, including recently the Paolo Bozzi Prize Lecture at the University of Turin in Italy, the Julius Stone Address in Jurisprudence at the University of Sydney and the Fresco Lectures in Jurisprudence at the University of Genoa. In the more popular media, he writes an occasional Academic Ethics column for the Chronicle of Higher Education. He has been voted “Professor of the Year” by his students and has consistently received student evaluations in roughly the top quartile of the faculty at both Texas and Chicago. 

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