Version: v1, Published online: 1998
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3. Positivism versus legal realism
Discussion about the nature of legal ‘reality’, the role of language in legal analysis, and the issues of value-freedom are illuminated by considering the legal realist perspective (see Legal realism). This discussion shows another essential aspect of legal positivism. As the name suggests, realists strive to attain the underlying reality of law which, they say, is hidden and distorted by other approaches, such as positivism or naturalism. The European legal realists share with analytical legal positivists the idea that law is language (see §2). Both also accept that, if it is true that legal rules are language, it is also a language that is often ‘misspoken’, so far as official legal rules (especially statutory law) are concerned. However, they draw different conclusions from this fact based on different ideas as to how a language should be described.
The situation here is similar to that of a natural language where the official grammar and lexicon are significantly detached from the living spoken tongue. Positivists could then be compared to the members of a purist academy who, while well aware of how the language is being used, nevertheless maintain that this is not how the language is, but only the way it is (mis)spoken, and that the task of the linguists – by analogy, the positivist legal philosopher – is to tell how a language is correctly spoken and to describe the rules which make up such a language. By contrast, the legal realists are like those linguists who maintain that the only reality of a language is the actual practice of speech; that linguistic rules are, at most, a useful device for summing up these practices and instances of actual use in so far as they are inferred or induced from actual practice. As for the British positivists, while H.L.A. Hart may, at first sight, seem immune from this criticism, most realists are unhappy with his notion that the single legal rule need not be socially effective, provided it belongs to a legal system (see below) which on the whole is effective (see Hart, H.L.A.). Hart’s critics say that this means taking into account lawyers’ image of the law as an ordered whole, rather than the often disordered reality of the law itself. They would also add that all forms of normative grammar are prescription rather than empirical description. Hence the charge that contemporary legal positivists are engaged in surreptitiously upholding official state law.
In the empiricist, language-conscious framework in which this debate is taking place today, the realist attitude looks more attractive. Before reaching this conclusion, however, a key question needs to be considered. The discussion between realists and positivists can be whittled down to the following: how far is knowing what the law is, different from knowing what the law is for its ‘speakers’? To make sense of the ideal of the rule of law, how far should we be able to distinguish what the law says from what (some) people believe it says? In other words, can we say that the intellectual practices of lawyers are a set of cognitive activities with an objective content rather than superstitious beliefs with a hidden social function?
The European realists thus also take effectiveness as the criterion of law but define that in terms of actual use. They maintain that a value-free and scientific approach to law should take into account all and only the effective legal rules, be they in the official book or not, as extracted by means of the punctual observation of legal practice. While no positivist will deny that such an enterprise is legitimate, albeit very ambitious, they will, however, call it the sociology of law. Moreover positivists would insist that jurists, legal officials, as such, need a different kind of knowledge of legal rules, which is what Kelsen called ‘normative science’ and Hart an approach ‘from the internal point of view’. They will need to know what certain rules prescribe not in order to predict legal behaviour, but in order to know how they should behave, in case they accept them. In fact, it could be argued that neither the realistic nor the positivistic accounts of law offer a genuinely sociological empirical explanation, even though both contain some essential reference to social reality. The realist will describe all and only the legal rules which are effective with judges, the positivist will take into account only those legal systems which are effective as a whole, disregarding the fact that some rules exist only ‘on paper’.
Jori, Mario. Positivism versus legal realism. Legal positivism, 1998, doi:10.4324/9780415249126-T008-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/thematic/legal-positivism/v-1/sections/positivism-versus-legal-realism.
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