Dan Priel, ‘Legal Realism and Legal Doctrine’

Legal realism is widely perceived to be hostile to legal doctrine. In the familiar narrative, the realists showed that legal doctrine does not, and cannot, constrain judges from using existing legal materials to reach virtually any outcome they want. As such, doctrine only serves to hides and obfuscate what is better discussed openly. The purpose of this essay is to complicate this familiar story. I focus on one contemporary take on legal realism that argues that an open discussion of values will give the law greater determinacy. I counter this view, first, by showing that it does not, in fact, fit the views of the legal realists, but reflects a modern view that fits contemporary (American) academic legal discourse. I also argue that it’s very unlikely that such a view would improve the law’s determinacy, and that it is likely to have undesirable consequences. I then propose an alternative, which I trace to work by some of the legal realists. This approach gives a clear role to legal doctrine and, so I argue, is normatively more appealing than the view that minimizes its role.

Priel, Dan, Legal Realism and Legal Doctrine (November 16, 2019) in Judges and Adjudication in Constitutional Democracies: A View from Legal Realism (Pierluigi Chiassoni and Bogan Spaić eds, forthcoming 2020).

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