Legal Positivism as a Realist Theory of Law

Abstract In earlier work, I argued that “legal realism” presupposes a positivist theory of law. Here, I argue that the most plausible version of legal positivism, H. L. A. Hart’s, is an essentially “realist” theory. “Realist” theories of law (1) describe without sentimental or moralizing illusions what law is and how it actually operates in human societies (descriptive adequacy takes priority over moralizing sermons); (2) recognize that law is never adequate to explain how courts adjudicate all cases that come before them; and (3) account for law and adjudication within the constraints of a naturalistic theory of the world—that is, one that eschews appeal to any entities or properties that do not find a place in successful empirical scientific accounts of natural and social phenomena. Both the American and Scandinavian (self-identified) “legal realists” were proponents of realist theories of law in this sense, albeit in very different ways, a point to which I return. Hart was a critic of both American and Scandinavian legal realisms, though in both cases he missed his mark. The irony is that Hart’s legal positivism is also a realist theory of law, and once we sort out the misunderstandings, it will be clear that legal positivists and realists form a unified theoretical front against the moralizing and ideological obfuscators about law, from Lon Fuller to Dworkin. One of Raz’s additions to Hart’s theory, however, the idea that law necessarily claims authority in Raz’s “Service Conception” sense, betrays the realist ambitions of Hart’s theory.