Work

Legal Realism, Legal Positivism, and Determinacy

Year: 2026

Type: article

Abstract: It is a commonplace that the legal realists argued that law is deeply indeterminate. According to this familiar account, the legal realists insisted that legal materials do not constrain judges, who are therefore free to decide cases in almost any way they want. An influential argument has been that the only way to explain this view is by showing that the legal realists presupposed a legal positivist theory of law. This essay offers a different understanding of the relationship between realism, positivism, and determinacy, challenging the commonplace interpretation of the realists as both historically false and philosophically unwarranted. I provide many examples showing that the prevailing view that the legal realists thought law was deeply indeterminate is mistaken. As part of this argument, I contend that one of the best-known realist articles has been widely misunderstood. Typically read as showing that judges are free to interpret statutes in almost any way they want, its actual message was almost the exact opposite, seeking to show how law can be determinate, despite competing theories of interpretation.

Source: The American Journal of Jurisprudence

DOI: 10.1093/ajj/auag003

Author: Dan Priel

Institution: City University of Hong Kong

Language: English

Topic: Comparative constitutional jurisprudence studies

Subfield: Political Science and International Relations

Field: Social Sciences

Domain: Social Sciences

SDG: Peace, justice, and strong institutions

Open Access status: hybrid

Estimated APC paid: $4,533