Monday, July 1, 2024

"How to Cabin the Realist Indeterminacy Thesis: On Green, Positivism, and the Sources of Law"

The penulimate version on SSRN, for a volume that OUP will publish on the legal philosophy of Leslie Green.  The abstract:

Leslie Green raised an important challenge to my reconstruction of the American Legal Realist (ALR) arguments for the indeterminacy of law and legal reasoning:  how can those arguments be limited, as I claim, to mostly appellate cases?  The key, I argue, is to recognize that (1) the central ALR argument for indeterminacy appeals to the existence of equally "legitimate" but conflicting ways of interpreting valid sources of law, and (2) the relevant notion of "legitimacy" is sociological (i.e., what is actually accepted by lawyers and judges).  The ALR argument for indeterminacy being most apparent at the appellate level is then an empirical claim, which the ALRs supported with extensive evidence in many areas of law.  I also consider Green's suggestion that ALR takes most sources to be "permissive sources" (in Hart's sense), and criticize some misunderstandings of both ALR and Scandinavian Realism.

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