Dagan and Kreitner, ‘The New Legal Realism and the Realist View of Law’

Abstract:
This Essay reviews the two volumes jointly entitled The New Regal Realism, which were published recently by Cambridge University Press. NLR, on our reading, is a species of empirical legal studies, which has five distinctive features: (1) NLR is law-centered – it carefully addresses both legal doctrine and legal institutions; (2) NLR is deeply concerned with translating social science and synthesizing its findings into law; (3) NLR is oriented bottom-up, focusing on law on the ground rather than law in appellate cases or doctrinal treatises; (4) NLR scholars are often committed to constructive legal action; and finally, as a 21st century school, (5) NLR is profoundly attuned to both the risks of parochialism and the proliferation of legal forms in an increasingly globalized environment.

We argue that a particularly helpful way for appreciating both NLR’s main promises and its most significant challenges is by situating it within the realist view of law as a set of institutions distinguished by the irreducible cohabitation of power and reason, science and craft, tradition and progress. NLR furthers this legal realist legacy in (at least) two ways. The first, and more obvious one, is by carrying its promise of situated empiricism, or more precisely – and much less obviously – by demonstrating the power of combining attention to both the pertinent social science that can guide the law and the craft that typifies legal discourse and legal institutions. Whereas many other descendants of legal realism offer either an external, social scientific perspective on law, or an internal craft-based alternative, NLR (at its best) offers the winning combination.

The second promise of NLR is evinced by the very structure of these books – the fact that the second volume is dedicated to the global perspective – manifesting the ambition to transcend realism’s American roots by investigating how other domestic settings, as well as the transnational and sub-statist contexts, inform our understanding of law. Legal realism did not anticipate this move explicitly, but the realist view of law is open to non-statist understandings, and the NLR’s globalized ambitions – and, of course, performance – validate what others may see as an unfortunate omission.

Along these two significant promises, this essay explores three related challenges facing NLR, which are again best highlighted by reading NLR scholarship against the realist view of law. The first and most general challenge is to identify the ‘lingua franca’ of law as an academic discipline within which NLR insights on translation and synthesis should be situated. Another challenge emerges from the possible ambiguity of NLR’s characteristic focus on bottom-up investigation, which may – but need not – imply a celebration of legal ad-hocism in defiance of the rule of law. Finally, the third challenge, which may be particularly daunting given the NLR’s global emphasis, is to identify a solid underpinning for the reformist impulse, which suggests that NLR cannot stand solely on empirical commitments.

Dagan, Hanoch and Kreitner, Roy, The New Legal Realism and the Realist View of Law (May 5, 2017). Law and Social Inquiry, forthcoming.

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