This paper was for a symposium on laurence claus, law's evolution and human understanding oxford, 2013. In it i discuss the similarities between claus's approach and the legal realists' prediction theory of law. 1 the theory and practice of legislation 113 28 2013 this is a short invited piece. In it i focus on the consequences that my philosophical anarchist reading of cohen has for his views about legislation. This piece is a review essay on brian leiter's book naturalizing jurisprudence: essays on american legal realism and naturalism in legal philosophy oxford u.

It is the best thing i've written on the realists and the best description of how my reading differs from leiters. First of all, i emphasize that the realists especially jerome frank, felix cohen, and walter wheeler cook believed that the existence of the law including the law of a reasonably just state like the united states does not entail that a judge has a reason to adjudicate as the law commands. This does not mean, of course, that there are not excellent moral reasons for a judge to apply the law in most circumstances.

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But adjudication according to the law is always a moral decision that requires adequate moral justification. Second, i argue, contrary to leiter, that many realists were committed to a prediction theory of law. According to the first, which is best described as a decision theory of law, the law concerning an event is whatever concrete judgment a court will issue when the event is litigated. According to the second, the law is reduced, not to concrete judgments, but to regularities of judicial and other official behavior in a jurisdiction. In contrast, leiter argues that the realists were committed to a standard positivist theory of law, such as that offered by h.l.a. 46 william and mary law review 1915 20 2005 this is my most cited article although usually just for my statement that people have said we are all legal realists now so often that it has become a clichй to call it a clichй . Like the leiter review above, i argue that the realists were philosophical anarchists and were committed to two prediction theories of law.

In addition to offering a reading of the legal realists, i take on current philosophers of law who attempt to explain the normativity of law in terms of its providing officials with reasons although not necessarily moral reasons for action, and i suggest that h.l.a. This article also differs from the leiter review in the way i frame my interpretation of the realists. Why, i ask, did they deny that there are legal rules? the reason, i argue, is that they thought of legal rules in the natural law sense of entailing duties of obedience.

And, being philosophical anarchists, they denied that legal rules, in this sense, can exist. Another reason that they denied that legal rules in this sense can exist is because they were skeptical about the very idea of there being any non instrumental reasons for action, even moral reasons for action. Now, it is true that the realists often suggest that legal rules are illusory and the philosophical anarchist reading helps explain why they did. But philosophical anarchism can be attributed to the realists independently of their occasional rejection of the very idea of legal rules. In a lengthy footnote in naturalizing jurisprudence, brian leiter called this article extraordinarily confused p.

16 legal theory 1 33 2010 , he describes it as wrong, but jurisprudentially interesting because it articulates precise and distinctive realist theses about law and adjudication. I briefly respond to leiter's comments in footnote 70 of leiter on the legal realists. Peres prize by the faculty of yale law school for best note in yale law journal in the academic year 1994 95. The germ of the philosophical anarchist reading of the realists, discussed above, is there. In it i offer a revisionary reading of the role that legal realism played in the choice of law revolution, in which the vested rights theory of beale was replaced by interest analysis. A professor from yale law school, published a series of articles debating the nuances of the movement. It continues to influence how judges, lawyers, and laypersons think about the law.

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Many realists, like pound and llewellyn, were sharply critical of each other and presented irreconcilable theories. The strands focus on power and economics in society, the persuasion and characteristics of individual judges, society's welfare, a practical approach to a durable result, and a synthesis of legal philosophies. The first strand is marked by the nihilistic view that law represents the will of society's most powerful members.

When he tells socrates that in every government laws are made by the ruling party in its own interest, and the ruling element is always the strongest. When courts speak in terms of what is right and just, thrasymachus said, they are speaking in the interest of those established in power. Justice holmes echoed these sentiments when he wrote that the law must not be perverted to prevent the natural outcome of dominant public opinion lochner v.

Realists argued that law frequently equates the dominant power in society with pervasive economic interests. Legal realism movement in the nineteenth century, the united states was transformed from a static agrarian economy into a dynamic industrial market. Horwitz reported in the transformation of american law that when interpreting an insurance contract, one judge remarked in 1802 that courts must not adopt an interpretation that will embarrass commerce.

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Instead, the judge said, courts are at liberty to adopt such a construction as shall most subserve the solid interests of this growing country. To help subsidize the growth of a competitive economy in the nineteenth century, realists have argued, u.s. Judges commonly frowned on claims brought by litigants seeking monopolistic power. 270 1805 , a downstream landowner asked the new york supreme court to grant him the exclusive right to use river water for commercial activity despite any injuries that might result to upstream owners.

The court refused to grant such a right because if it did the public would be deprived of the benefit which always attends competition and rivalry. In a subsequent case, the new york supreme court held that a landowner's right to enjoy his property could be modified by the exigencies of the social state losee v. At the same time the common law was facilitating economic expansion, realists claimed that it was also helping to increase the number of exploited u.s.

They felt that the economy was regulated by common law principles that safeguarded the interests of society's wealthiest members. In support of this contention, realists pointed to landlord tenant laws that entitled lessors to evict lessees for technical breaches of their lease, labor laws that allowed management to replace striking workers, and contract laws that permitted employers to terminate their workers without justification. One is the conservative law and economics movement, whose adherents, most prominent of whom is richard posner. Believe that common law principles must be interpreted to maximize the aggregate wealth of society without regard to whether such wealth is distributed equally. The other is the liberal critical legal studies movement, whose adherents, called crits, believe that the law must be utilized to redistribute wealth, power, and liberty so that every citizen is guaranteed a minimum level of dignity and equality.

Since the mid 1900s, the crits have focused less on what they perceive as economic exploitation in the law, and more on what they see as political exploitation. Courts for advancing the interests of adult, white, heterosexual males at the expense of women, blacks, and homosexuals. The crits have commonly referenced three cases to corroborate this point: mccleskey v. 2d 262 1987 , in which the supreme court rejected a constitutional challenge to capital punishment despite evidence that african american defendants are almost three times more likely than whites to receive the death penalty for murdering a white person craig v.