Legal Realism, Legal Positivism, and Determinacy

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.