If positivism is dissatisfying, legal realism is frightening

Legal realism, certainly of the kind that can be traced back to former US Supreme Court Justice Oliver Wendell Holmes Jr., represents a bleak picture of law that abandons noble liberal and democratic ideals in favour of a system of rule by a thousand emperors. 

Particularly, legal realists’ insistence that law can be found in judges’ consideration of prevailing social interests and public policy consideration, alongside the written law and unwritten legal principles, casts far too great a discretion upon judicial officers and is apt to permit a level of arbitrariness that is totally out of step with community expectations.

The fusion of legal, social and political institutions is dangerous for many reasons, not least of all because it reduces ‘law’ to the rule of individuals and groups (either the dictatorship of elites or the dictatorship of the mob) over other human beings. This should be of great concern to any person seriously committed to the protection of individual human rights, especially of social and political minorities.

By contrast, the virtues of a system of governance ruled by laws are many. These include certainty both of what the law is and how it is likely to be applied, confidence in the fair and just administration of justice to like cases, and security in the knowledge that the law will protect law-abiding citizens from injustice.

Furthermore, the articulation of legal rules in statutes applied according to concrete, identifiable legal maxims produces a clarity that allows law to be intelligible, transparent and open to criticism. This is essential if one is to make any reasoned attempt to justify law, both morally and socially, both with regard to particular laws and in the broadest sense. Whether you accept or reject the separability thesis, this surely is a great advantage.

Therefore, although realism may appear to give a more accurate depiction of what, at least some, judicial officers do in practice, it cannot give anything more than what is fundamentally a frightening picture of law that requires us to believe that unelected quasi-lawmakers will never err and will never need to be held to account. Indeed, it requires us to accept that there is little to distinguish the rule of ‘law’ from the rule of dictators and kings. We should expect more from our legal system.

In contrast, legal formalism provides a superior picture of law because it can at least be said to offer a view of law that aspires to be beholden to concrete, objective, cognisable and non-arbitrary standards for governing human interaction. I know I’d take the rule of law over the rule of people 100 times out of 100.

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