Friday, October 7, 2022

"Alf Ross's Critique of American Legal Realism--and a Naturalistic Critique of Ross"

This draft paper (for a conference on Scandinaivan Legal Realism later this month at York) may interest some readers; the abstract:

The new edition (by Jakob Holtermann and Uta Bindreiter) of Alf Ross’s seminal work ON LAW AND JUSTICE presents an opportunity to reevaluate Ross’s contribution to a naturalistic jurisprudence, as well as the relation of Scandinavian to American Legal Realism. I show that Ross rejects both of the main forms of American Legal Realism (Frank’s “idiosyncrasy” wing, and Llewellyn’s “sociological” wing), thus confirming, as I have argued previously, that Scandinavian and American Legal Realism have almost nothing in common. I also argue, however, that Ross’s commitment to (1) verificationism, and (2) the “Kelsenian dogma” that laws are directives to judges, creates serious problems for his naturalistic theory of law, ones that H.L.A. Hart’s theory (even allowing for Hart’s mistakes about Ross’s view) can avoid while still satisfying the generic naturalistic demand not to invoke entities or explanations inconsistent with the empirical sciences.

Jurisprudence | Permalink