Zamboni - Legal Realisms. on Law and Politics

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MAURO ZAMBONI

LEGAL REALISMS: ON LAW AND POLITICS w

ABSTRACT. The focus of this work is the issue of whether, and to what extent, thenature of the law is affected by politics, has been taken up by the American and

Scandinavian legal realists. By the very fact of their being products of the socio-political conditions of the most recent century, the American and Scandinavian legalrealisms are the movements that have most explicitly and systematically brought tothe surface one particular characteristic phenomenon of contemporary Western legalsystems: the existence of two basic forces simultaneously attracting and repelling,affecting the law in its relations with the political world.

KEY WORDS: American legal realism, dilemma of law, law and politics, legaltheory, Scandinavian legal realism, welfare state

The focus of this work is a specic issue – that of whetherand to what extent the nature of the law is affected by politics – has been taken up by the American and Scandinavian legal real-ists. Despite some key differences, these two movements in legalphilosophy share a similar general depiction, or model, of how

the law relates to politics. This depiction offers an alternative tothe accepted views embraced by traditional legal positivism andnatural law theory. My contention is that the particular percep-tion of legal phenomena offered by American and Scandinavianlegal realists is more adequate to the complexities of the contem-porary relation between law and politics than the well-establishedtheories of natural law and legal positivism. Partly by the veryfact of their being products of the socio-political conditions of

* I would like to deeply thank Brian Bix, Laura Carlson, RogerCotterrell and Jori Munukka for their many helpful comments onearlier drafts of this article. Any errors remaining are my own.

Res Publica (2006) 12:295–317 Springer 2006DOI 10.1007/s11158-006-9010-y



the most recent century, these approaches have been mostexplicit and systematic in bringing to the surface one particularcharacteristic phenomenon of contemporary Western legal sys-tems. This is the existence of two basic forces, simultaneouslyattracting and repelling, affecting the law in its relations with thepolitical world.

After a brief sketch of aspects of the terminology used inthis article in the next section, the article addresses a series of interlocking issues. First, the complexity of present contempo-rary factual backgrounds characterizing the relationship of law

and politics. Attention is focused in particular on the dualisticsystem of forces typical of the welfare state, forces pulling thelaw both towards and away from its political dimension. Secondcomes an outline of the effects such underpinnings have on tra-ditional legal theories, as well as their conceptions as to whe-ther the inner core of the legal phenomenon is affected by thepolitical values as carried and the political functions as per-formed. The article then examines the stances taken towards thesame issue by American and Scandinavian legal realisms. In

contrast with natural law theory, both the American and Scan-dinavian Realists opt for a general idea of the rigidity of thelaw towards politics. In contrast to traditional legal positivism,meanwhile, the legal realists however consider this ‘rigid’ natureof the law to be only partial in nature. As a consequence, amodel dened as ‘intersecting’ is presented, in the penultimatesection of the article, as epitomizing the basic ideas of the legalrealists as to how the legal phenomenon interacts with the polit-ical one.

PRELIMINARY CLARIFICATIONS OF K EY TERMS

The discussion here requires two preliminary clarications. Therst is the meaning of politics as used in this work. Politics heresignies the complex of values (of an economic, social or moralnature), as well as the processes (and the actors participating in

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them, e.g., interest groups) through which such values are thenchosen to be implemented by the public authoritative apparatusinto the community using law-making. 1

The second clarication has to do with the difculty in general whenspeaking of a movement or a stream of legal thinking. In the case of the legal realists, it is even more difficult because of their tendency, inparticular in the United States, to cover a wide range of legal-theoreti-cal positions. 2 Moreover, it is difcult to nd common elementsbetween the American and the Scandinavian legal realisms. They differboth in their theoretical premises (pragmatism in United States, the

moral philosophy of the Swede Axel Ha gerstro ¨m in Scandinavia) andin the focus of their investigations (the work of the courts in America,the statutory texts in Scandinavia). These differences have led someauthors go so far as to state that the only thing these two movementshave in common is that they bear the label of ‘legal realism’. 3

Despite the position one may take with respect to these prob-lems, an indirect goal of this article is to demonstrate, at least in thediscussion as to politics, that the American and Scandinavian legal

1 See David Kairys, ‘Introduction’, in David Kairys (ed.), The Politics of Law: AProgressive Critique , 3rd edn. (New York: Basic Books, 1998), 1–20, p. 5, 14–15; Alf Ross, On Law and Justice (London: Stevens & Sons, 1958), pp. 334–339; HansKelsen, Allgemeine Staatslehre (Berlin: Julius Springer, 1925), p. 28; and Joseph Raz,‘Rights and Individual Well-Being’, in Joseph Raz, Ethics in The Public Domain:Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1994),pp. 29–44, 37–40. But see Roberto Mangabeira Unger, ‘The Critical Legal StudiesMovement’, Harvard Law Review 96 (1982), 561–675, p. 568; Neil MacCormick,‘Institutional Normative Order: A Conception of Law’, Cornell Law Review 82(1997), 1051–1070, pp. 1062–1064; and the classic denitions for political science inDavid Easton, A Systems Analysis of Political Life (Chicago: The University of Chicago Press 1979), pp. 21–33; and Robert A. Dahl, Modern Political Analysis , 5thedn. (Englewood Cliffs: Prentice Hall International, 1984), pp. 9–10.

2 See Karl N. Llewellyn, ‘Some Realism about Realism’, Harvard Law Review 44(1931), 1222–1264, pp. 1233–1234. See also Neil Duxbury, Patterns of AmericanJurisprudence (Oxford: Clarendon Press, 1995), pp. 68–71.

3 See Wolfgang Friedmann, Legal Theory (New York: Columbia University Press,5th ed., 1967), pp. 304–305; Hilaire McCoubrey and Nigel D. White, Textbook onJurisprudence , 3rd edn. (London: Blackstone Press Limited, 1999), p. 178; Michael D.A. Freeman, Lloyd’s Introduction to Jurisprudence , 7th edn. (London: Sweet & Max-well Ltd., 2001), p. 872; and Gregory S. Alexander, ‘Comparing the Two Legal Real-isms – American and Scandinavian’, American Journal of Comparative Law 50 (2002),131–174, p. 132. As to the philosophical roots of the American and Scandinavian legalrealisms, see, e.g., Jerome Frank, Law and the Modern Mind (London: Stevens & SonsLtd., 1949), p. 253; and Ross, On Law and Justice , op. cit., p. x.

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realists are on the same track in at least one aspect: The perceptionof the law as neither totally outside of nor completely embeddedinto the political mass, but as intersecting the political world.

THE D ILEMMA OF LAW IN THE CONTEMPORARY AGE

Beginning already with the very birth of the nation state, attentionhas specically been devoted to explaining the interrelationship of legal and political phenomena. Machiavelli and Hobbes stand outclearly for their early lucid and penetrating analyses of issues aris-ing at the law/politics conjuncture in modern times. 4 This theoreti-cal interest in general has its roots in the fact that, as pointed outby Ju rgen Habermas, the very ‘complex of law and political powercharacterizes the transition from societies organized by kinship tothose early societies already organized around states’. 5 Closer tothe present, Rudolph von Jhering has assumed a central positionamong those legal scholars attempting to understand and navigatethe relations between law and politics. 6

Despite so much attention, this issue of positioning the law withrespect to the political realm is far from being settled. On the con-trary: the distances between opinions as to issues of law and poli-tics have considerably increased over time, in particular since thebirth and consolidation of the welfare state. This disagreement asto the relation of law and politics has increased in part as forms of political organization associated with the welfare state require asone of their fundamental features the very use of the law as an

4 See, e.g., Niccolo Machiavelli, The Prince (London: J. M. Dent & Sons, 1908)[1532], Ch. V, XII; Thomas Hobbes, Leviathan (Harmondsworth: Penguin Books,1985) [1651], Ch. XXVI.

5 Ju rgen Habermas, Between Facts And Norms: Contributions to a DiscourseTheory of Law and Democracy (Cambridge, MA: The MIT Press, 1998), p. 137.

6 See Rudolph von Jhering, The Struggle for Law , 2nd edn. (Chicago: Callaghan,1915), pp. 1–2, 25–29, 61–63.

7 See Lawrence M. Friedman, ‘Introduction’, Theoretical Inquiries in Law 4(2003), 438–450, p. 446; and Gunther Teubner, ‘Juridication: Concepts, Aspects,Limits, Solutions’, in Gunther Teubner (ed.), Juridication of Social Spheres: AComparative Analysis in the Areas of Labor, Corporate, Anti-Trust and Social Welfare(Berlin: Walter de Gruyter, 1986), 3–48, pp. 3–4. For the more practical impacts of juridication on different areas of law, see generally Rene e Ro ¨mkens, ‘Law as TrojanHorse: Unintended Consequences of Right-Bases Interventions to Support BatteredWomen’, Yale Journal of Law and Feminism 13 (2001), 265–291.

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instrument for social engineering. 7 This feature, in its turn, hasgiven rise to the phenomenon of a ‘systems conict’, an aspect of the more general ‘dilemmas of law in the Welfare State’. 8 This phe-nomenon arises due to the co-existence in this age of two systemicforces towing the law in opposite directions, affecting the verynature of law as a social phenomenon.

THE POLITICIZATION OF CONTEMPORARY LAW

One of these forces pulls in the direction of concentrating the lawinto the hands of politicians, therefore requiring a law more obedi-ent in nature to political needs than, for example, to those of a sys-tematic legal development. In other words, law becomes morepoliticized, i.e., structurally more exible to the reasons of politics. 9

Politicization of the law is the phenomenon by which politicaland legal actors make increasing use of the law with the primary(and often exclusive) objective of implementing their own valuesand political priorities. Actors belonging both to the political and

the legal arenas tend to subvert the traditional internal rules con-cerning the process of law-making (such as the formal consistencyof the legal order) in favor of a more pragmatic, results-orientatedapproach (for example, introducing a certain model of behaviorinto a community). As pointed out by Niklas Luhmann, politicalcontrol of the law is characterized ‘by the fact that it operates with-in an incongruent perspective, in that it judges decisions with a viewnot to their correctness, but to their consequences’. 10

By no means did this phenomenon of the politicization of thelaw originate in the twentieth century. Historically, political powers

8 Gunther Teubner, ‘The Transformation of Law in the Welfare State’, in GuntherTeubner (ed.), Dilemmas of Law in the Welfare State (Berlin: Walter de Gruyter,1986), 3–10, pp. 6–7.

9 In particular, Carl Schmitt has stressed this feature of the modern relationsbetween law and politics. See Schmitt, Verfassungslehre (Berlin: Duncker & Hum-blot, 1928), 22. See also Richard A. Posner, ‘The Decline of Law as an AutonomousDiscipline: 1962–1987’, Harvard Law Review 100 (1987), 761–780, pp. 766–767,773–774 and, as an actual example of such exibility, Robert Glicksman andChristopher H. Schroeder, ‘EPA and the Courts: Twenty Years of Law and Politics’,Law and Contemporary Problems 54 (1991), 249–310, p. 250.

10 Niklas Luhmann, A Sociological Theory of Law (London: Routledge & KeganPaul, 1985), p. 224 (emphasis in the original).

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(including here also powers of a moral, religious, social, culturaland economic nature) have made a quantitatively extensive use of the law in order to get their values implemented into a commu-nity. 11 What is typical of modern times, at least in Western legalorders, is the fact that the politicization of the law has reached adifferent qualitative level. Previously, the law was considered oneamong many tools at the disposal of the political powers. Today itis the favored instrument for enforcing values into a community,as:

[t]oday the most common form of legitimacy is the belief in legality, the compli-

ance with enactments which are formally correct and which have been made in theaccustomed manner. 12

One effect of this qualitative development is traceable in a con-temporary phenomenon affecting almost every legal order aroundthe world on both a practical and theoretical level: the intensica-tion of the debate concerning judicial activism. 13 Judicial activismis a sign of the politicization of the law, as it comprises judicialactivity directed at stretching the formal structures and letter of thelaw (in particular at the constitutional level) in order to implementthose values which political actors are unable to sense in the com-munity, are unable to transform into legislative measures, or thatare simply part of the political baggage of the judges. 14

11 One example is the use of Roman law in 13–14th centuries by jurists loyal to theemperor as against the legal foundation of the pope’s authority. See George H.Sabine, A History of Political Theory , 3rd edn. (New York: Holt Rinehart & Win-ston, 1964), pp. 277–280.

12 Max Weber, Economy and Society: An Outline of Interpretive Sociology(Berkeley: University of California Press, 1978), p. 37 (emphasis in the original). Seealso Roger Cotterrell, The Sociology of Law: An Introduction , 2nd edn. (London:Butterworths, 1992), p. 44; and Habermas, Between Facts and Norms , op. cit., p. 171.

13 See Robert H. Bork, The Tempting of America: The Political Seduction of theLaw (New York: Touchtone/Simon and Schuster, 1990), p. 3. See also David L.Anderson, ‘When Restraint Requires Activism: Partisan Gerrymandering and theStatus Quo Ante’, Stanford Law Review 42 (1990), 1549–1577, p. 1570; and Mark V.Tushnet, ‘Comment on Cox’, Maryland Law Review 47 (1987), 147–154,pp. 147–153.

14 In this way, judicial activism is value-free in the sense that it works in the sameway, regardless of the contents (e.g., liberal or conservative) of the values it is toimplement. See Neil Duxbury, ‘The Theory and History of American Law andPolitics’, Oxford Journal of Legal Studies 13 (1993), 249–270, p. 252. But see JohnFerejohn, ‘Judicializing Politics, Politicizing Law’, Law and Contemporary Problems65 (2002), 41–68, p. 49, 55–57.

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THE SPECIALIZATION OF CONTEMPORARY LAW

The increasing complexity of the political world, and the extensionof the number of areas it recognizes as its domain, and thereforeregulates by law, in their turn cause another force pulling the lawin the opposite direction. Through increasing use by political actorsas an instrument to inuence society, the law grows more and morecomplex and specialized, and therefore requires a specic andunique core of knowledge for production and functioning. The spe-cialization of law, due to the increasingly detailed ‘marking out of

what counts as legal knowledge, legal reasoning and legal issues’,15

leads to the progressive marginalization of political discourse fromthe mechanisms (though not the content) of law-making, as well astheir substitution by the specic knowledge and discourse providedby specic actors – namely, lawyers.

As with politicization, the specialization of legality is not aproduct of the twentieth century. Beginning in ancient Romethrough the Middle Ages, a branch of human knowledge and agroup of actors dealing specically with the law and its making has

existed. What characterizes the contemporary legal phenomenon isthe high degree of its specialization, paralleling (and somehow con-nected with) an equally strong politicization of the law. 16 Therecent shift in many Western countries to a more deregulated orweaker version of the welfare state does not appear to haveaffected the strength of those two divergent systemic forces. On the

15 Roger Cotterrell, Law’s Community: Legal Theory in Sociological Perspective(Oxford: Clarendon Press, 1995), p. 12. See also Robert S. Summers, ‘Law as a Typeof ‘‘Machine’’ Technology’, in Robert S. Summers, Essays in Legal Theory(Dordrecht: Kluwer Academic Publishers, 2000), 43–54, p. 49; and Joseph Raz, ‘TheInner Logic of Law’, in Raz, Ethics in The Public Domain , op. cit., 222–237, pp. 236– 237.

16 See, e.g., Alan Watson, Roman Law & Comparative Law (London: TheUniversity of Georgia Press, 1991), p. 104; Pierre Bourdieu, ‘The Force of Law:Toward a Sociology of the Juridical Field’, Hastings Law Journal 38 (1987), 814–853,pp. 835–836, 841; Alan Hunt, ‘The Politics of Law and the Law of Politics’, inKaarlo Tuori, Zenon Bankowski and Jyrki Uusitali (eds), Law and Power: Critical and Socio-Legal Essays (Liverpool: Deborah Charles Publications, 1997), 51–83,pp. 82–83; Niklas Luhmann, ‘Closure and Openness: On Reality in the World of Law’, in Gunther Teubner (ed.), Autopoietic Law: A New Approach to Law and Society (Berlin: Walter de Gruyter, 1988), 335–348, p. 346; and Cotterrell, Law’sCommunity , op. cit., p. 299. See also Summers, ‘Law as a Type of ‘‘Machine’’Technology’, op. cit., p. 52.

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contrary, the importance and use of the law as a tool in the handsof politicians has increased. 17

This growing specialization is echoed in the degree of penetra-tion of the law in different areas of human activity, for examplewith the phenomenon of over-regulation both in the United Statesand in the European Union. This also increases the specicity of the area of expertise required of lawyers. For example, historicallythere basically was simply one distinction drawn at bar, betweencivil and criminal lawyers. Today, lawyers specialize to such a de-gree that they may, for example, be experts solely in one specic

aspect of the legal process, such as the ramications as toemployment contracts with respect to corporate take-overs. Lastbut not least, this growing specialization also becomes visible inthe training required for future lawyers, for example in theincreasing number of specialized courses and curricula given bylaw faculties. 18

Again, these tendencies by which the law is politicized orframed in spaces of autonomy, are not exclusive to the contempo-rary age. The simultaneous and increasing intensity of the forces

pulling law both towards and away from politics, and the ten-sions they engender within the legal phenomenon, are today char-acterizing elements of the systems conict. It is in the legalsystems of the very contemporary Western states that ‘law-makingcontinually disrupts the tendencies to ratio in law, so that lawyersare engaged in a permanent repair job on law’s edices of doctrinal reason’. 19

17 See, e.g., Freeman, Lloyd’s Introduction to Jurisprudence , op. cit., p. 1047; MaryRuggie, ‘The Paradox of Liberal Intervention: Health Policy and the AmericanWelfare State’, American Journal of Sociology 97 (1992), 919–944, pp. 927–940; andRobert W. Gordon, ‘A New Role For Lawyers? The Corporate Counselor afterEnron’, Connecticut Law Review 35 (2003), 1185–1217, p. 1211. But see Joseph Raz,‘Government by Consent’, in Raz, Ethics in The Public Domain , op. cit., 339–353,pp. 339–340.

18 See Robert C. Ellickson, ‘Taming Leviathan: Will the Centralizing tide of theTwentieth Century Carry into the Twenty-rst?’, Southern California Law Review 74(2000), 101–118, pp. 101; Andrew D. Abbot, The System of Professions: An Essay onthe Division of Expert Labor (Chicago: University of Chicago Press, 1988), pp. 248– 254; and Edward Vink and Edward Veitch, ‘Curricular Reform in Canada’, Journal of Legal Education 28 (1977), 437–484, pp. 438–445. See also Weber, Economy and Society , op. cit., p. 895.

19 Cotterrell, Law’s Community , op. cit., p. 319 (emphasis in the original).

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CONTEMPORARY LAW AND CONTEMPORARY LEGAL THEORY

The very fact that these contemporary tensions stretch the lawtowards and, at the same time, away from politics, cannot leave thework of legal scholars unaffected. As pointed out by Duxbury, ‘thepolitical nature of law represents a fundamental – if not the funda-mental – problem of modern jurisprudence’. 20 The traces of theseforces as operating on modern Western legal systems can then bedetected in the positions taken by contemporary legal theories as tothe issue of law and politics.

Contemporary legal scholars are inclined to be attracted to adyadic way of solving the law and politics dilemma. As pointed outby Roger Cotterrell, contemporary legal theories tend to depict thelegal phenomenon either as being essentially voluntas regis (i.e., lawshaped by political powers) or as dominated by its own ratio (i.e.,law as shaped by its internal rationality). 21 Contemporary legal the-ories then tend to shift between two extremes or, as one can callthem, two ideal-typical ways of depicting the law/politics relations:‘law is politics’ and ‘either law or politics’. 22

The divisive question is whether the law is exible , i.e., whetherit tends to adapt its forms and its nature in accordance with thepolitical substances it carries (law is politics). This feature of thelaw is pointed out in particular by natural law theory, e.g., the the-ory of John Finnis. The other ideal-type solution is to consider thelaw as tending towards rigidity , i.e., as tending to keep the sameforms and mechanisms regardless of content (law vs. politics). This

20 Duxbury, ‘The Theory and History of American Law and Politics’, op. cit., p.270. See also Joseph Raz, ‘Disagreement in Politics’, American Journal of Jurispru-dence 43 (1998), 25–52, p. 26; and Habermas, Between Facts and Norms , op. cit.,pp. 388–390.

21 See Cotterrell, Law’s Community , op. cit., pp. 165–166, 317–320.22 It is true that the typology of ‘law is politics’ vs. ‘either law or politics’ con-

denses that which in reality is a more complex phenomenon: the universe of differinganswers given by contemporary legal theories as to the central question of how thelaw relates to politics. Even within the work of the same individual legal scholar, itcan be difcult to trace any unconditional embracing of one model over another. See,e.g., John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980),pp. 148–149 and Roger Cotterrell, The Politics of Jurisprudence: A Critical Intro-duction to Legal Philosophy (London: Butterworths, 1989), p. 148. Despite thislimitation typical of every generalization, it can be maintained that this typologycovers the vast majority of contemporary legal theories.

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feature is stressed in particular by Kelsen and his idea of law andpolitics as two autonomous phenomena. 23

The dyadic typology of depicting the relations between law andpolitics in terms of ‘law is politics’ vs. ‘either law or politics’ ishowever incomplete, as it ignores a third way of looking at the is-sue, namely the one advocated by the American and Scandinavianlegal realisms.

POLITICS , LAW AND AMERICAN LEGAL R EALISM

The complex and, to some extent, contradictory relation of con-temporary law towards politics is mirrored in the depiction byAmerican legal realism of the relations between the two. 24 ForAmerican legal realism, the complexity of the nature of law origi-nates in the very fundamental features of the legal phenomenon,which they understand as a mixed construction of normative ele-ments (decisions of the courts) and socio-psychological elements(judicial behaviors). According to American legal realists, therigidity of the law towards politics exists in their basic assumptionthat the law is not simply paper rules. The law is also predomi-nantly the result of the work of the courts and their decisions inconcrete cases. 25 This identication of the law with the decisionsof the courts leads to the rejection of any ontology as to the legalphenomenon that attempts to establish the basis of the law else-where, in particular in the value world (as done by natural lawscholars). On the path paved by Oliver W. Holmes, Jr., American

realists delineate a border between the legal phenomenon, i.e., thedecisions of the courts, and the values (or politics) this phenome-non is directed to implement in the community. The ought-state-ments forming the judicial decisions are labeled ‘legal’ regardless

23 See, e.g., John Finnis, ‘The Authority of Law in the Predicament of Contem-porary Social Theory’, Notre Dame Journal of Law, Ethics and Public Policy 1 (1984),115–137, p. 133; Finnis, Natural Law and Natural Rights , op. cit., pp. 147–150,154–197; Hans Kelsen, The Pure Theory of Law (Berkeley: University of CaliforniaPress, 1970), pp. 89–91; and Hans Kelsen, ‘The Pure Theory of Law and AnalyticalJurisprudence’, Harvard Law Review 55 (1941), 44–70, pp. 45–48.

24 See Karl N. Llewellyn, ‘A Realistic Jurisprudence – The Next Step’, ColumbiaLaw Review 30 (1930), 431–465, p. 431.

25 See, ibid., pp. 447–448.

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of whether they are directed at fullling value f or the oppositevalue e:

Law is law, whether it be good or bad , and only upon the admission of this truismcan a meaningful discussion of the goodness and badness of law rest. 26

For the American legal realists, the rigidity of the law is alsoensured by the fact that legal rules and concepts structuring the laware characterized as being linguistically indeterminate. The largenumber of precedents, techniques to evaluate such precedents andestablished rules underpinning the decisions of the courts areoften characterized as being linguistically ‘open’, usable in differentdirections. 27

This view of the indeterminacy of the legal language does notnecessarily imply a exible concept of the law towards politics, i.e.,an idea that the determinacy of the legal language has to be foundreferring to values produced outside the legal world. Just the oppo-site, one of the central themes for American realists is to improveas much as possible the predictability of judicial decisions. This isto be done looking primarily (but not exclusively) into the same

legal world’s categories and concepts, into the judicial decisionsand their legal language. Indeed, judges choose from among differ-ent legal constructions, i.e., different normative categories, and notfrom among different values (at least not directly). 28

However, this choice by judges from among different legal cat-egories is the point at which American legal realists begin to openthe structures of law. They make the law more exible, or betteryet, only partially rigid towards the political world. In fact,

26 Felix S. Cohen, ‘The Ethical Basis of Legal Criticism’, Yale Law Journal 41(1931), 201–220, p. 204 (my emphasis); cf. Oliver W. Holmes, ‘The Path of the Law’,Harvard Law Review 10: 8 (1897), 457–478, pp. 459–460 (1897).

27 See,e.g., Felix S. Cohen, ‘Transcendental Nonsenseand the Functional Approach’,Columbia Law Re view 35 (1935), 809–849, p. 811. But see, ibid., p. 822. A classicalexample of this open language is the nebulous prohibition in the Sherman Antitrust Actagainst ‘‘ every contract... in restraint of trade or commerceamong the several states,’’ 15U.S.C. ß 1 (1990). See also Frank, Law and the Modern mind , op. cit., pp. 22–24.

28 As stressed by Llewellyn, ‘the eld of free play for Ought in appellate courts isvastly wider than traditional Ought-bound thinking ever has made clear. This, withinthe connes of precedent as we have it, within the limits and on the basis of ourpresent [legal] order’. Llewellyn, ‘Some Realism about Realism’, op. cit., p. 1252(emphasis in the original). See also William Twining, Karl Llewellyn and the RealistMovement (London: Weidenfeld & Nicolson, 1973), p. 490.

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[e]ach precedent considered by a judge and each case studied by a student rests atthe center of a vast and empty stadium. The angle and distance from which thatcase is to be viewed involves the choice of a seat. Which shall be chosen? Neither judge nor student can escape the fact that he can and must choose. 29

This very act of choosing a seat, of choosing among the differ-ent legal-conceptual structures that are law, is the moment when judges are most heavily inuenced by the value environment inwhich they live, work and have been educated. It is this very ideathat the law is that which the judges produce, and not that which isin the statute books, that makes the American realist emphasize

how the social and political environments in which judges operatehave to be taken into consideration when dealing with the issue of what the law is. Only after this is done can one truly understandhow and why a certain rule, concept or category has been createdor chosen in a judicial decision to become law. 30

The realist idea of law then leaves relevant spaces (althoughinside a framework of rigidity of the law) to the political world.The orientation by the judiciary in favor of giving normative statusto one concept (for example the normative construction of the pro-

hibition of contracts unreasonably restricting trade) instead of theother (for example the prohibition of every contract restrictingtrade) is mostly determined by non-normative elements; in primis ,the social environment and the political ideology of judges. 31

29 Herman Oliphant, ‘A Return to Stare Decisis’, American Bar AssociationJournal XIV (1928) 71–163, p. 73. See also Karl N. Llewellyn, ‘On Reading andUsing the Newer Jurisprudence’, Columbia Law Review 40 (1940), 581–614,pp. 593–594 and his idea that judges are not ‘free to be arbitrary ’ but nevertheless‘free to some real degree to be just and wise’ (emphasis in the original).

30 ‘Behind decisions stand judges; judges are men; as men they have humanbackgrounds.’ Llewellyn, ‘Some Realism about Realism’, op. cit., p. 122. See alsoKarl N. Llewellyn, The Common Law Tradition. Deciding Appeals (Boston: Little,Brown, and Company, 1960), pp. 189, 201; Frank, Law and The Modern Mind , op.cit., p. 23; Walter Wheeler Cook, ‘Facts and Statements of Fact’, University of Chicago Law Review 4 (1937), 233–246, p. 233. Cf. Ronald Dworkin, Law’s Empire(Cambridge, MA: Harvard University Press, 1997), p. 36; and Wilfrid E. Rumble,American Legal Realism: Skepticism, Reform, and the Judicial Process (Ithaca, NY:Cornell University Press, 1968), pp. 55–63.

31 See, e.g., Cohen, ‘Transcendental Nonsense and the Functional Approach’, op.cit., p. 839. Cf. Oliver W. Holmes, The Common Law (New York: Dover Publica-tions, 1991), p. 41. See also Brian Leiter, ‘Legal Realism’, in Dennis Patterson, ACompanion to the Philosophy of Law and Legal Theory (Oxford: Blackwell, 1996),261–279, p. 270.

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In summary, American realists consider the law as rigid towards politics because the law is that which is decided by jud-ges, and judges allow the values of the political world to enterinto the law only if the values take the form of legal conceptsand categories as available or newly constructed. 32 However, it isonly a partial rigidity of the law towards the political world. Aslegal language is vague and available precedents endless and oftencontradictory, judicial decisions are inuenced by the values theyshare (or do not share). Therefore, the law can be fully under-stood in all its fundamental components only if the value environ-

ment is taken into consideration as signicantly affecting the lawitself. 33

SCANDINAVIAN LEGAL R EALISM AND THE PARTIAL R IGIDITY OF LAW

Although coming from a different theoretical background, anddifferent premises, Scandinavian legal realists parallel their Amer-ican colleagues in that the Scandinavians also tend to embrace

an idea of a partial rigidity in the nature and structure of thelaw towards politics. In contrast to their overseas colleagues,however, the partial rigidity of law for the Scandinavian legalrealist is not derived from an investigation of judge-made law.Scandinavian legal realists take another path and directly focuson the different concepts and categories that constitute theessence of the law: rights, duties, property, damages, etc. As a

32 See Llewellyn, ‘A Realistic Jurisprudence’, op. cit., p. 453; Twining, Karl Llewellyn and the Realist Movement , op. cit., p. 490. See also Freeman, Lloyd’sIntroduction to Jurisprudence , op. cit., p. 1040; Robert S. Summers, ‘On IdentifyingAnd Reconstructing A General Legal Theory – Some Thoughts Prompted ByProfessor Moore’s Critique’, Cornell Law Review 69 (1984), 1014–1046, p. 1018;Brian Leiter, ‘Legal Realism, Hard Positivism, and the Limits of ConceptualAnalysis’, in Jules Coleman (ed.), Hart’s Postscript: Essays to the Postscript to theConcept of Law (Oxford: Oxford University Press, 2001), 355–370, p. 355. But seeBrian Bix, ‘Law as an Autonomous Discipline’, in Peter Cane and Mark Tushnet(eds), The Oxford Handbook of Legal Studies (Oxford: Oxford University Press,2003), 975–987, p. 979.

33 See Cohen, ‘Transcendental Nonsense and the Functional Approach’, op. cit.,p. 839; and Llewellyn, ‘A Realistic Jurisprudence’, op. cit., p. 454. See also Freeman,Lloyd’s Introduction to Jurisprudence , op. cit., p. 810; and Brian Leiter, ‘LegalRealism and Legal Positivism Reconsidered’, Ethics 111 (2001), 278–301, p. 285.

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result of their investigations, Scandinavian realists draw two con-curring ideas of the nature of the law.

First, legal concepts and categories per se are detached fromany system of moral, religious or political values; the concepts of rights or duties are as attached to moral or political values asmuch as is the expression tu -tu – in other words, not at all. 34

The law is a complex of linguistic or symbolic signals enactedfor the purpose of provoking a certain behavior or non-behaviorin the addressees; they are ‘directives’ showing the paths thecommunity (Lundstedt, Olivecrona) or the judges (Ross) ought

to follow.35

Similar to trafc lights or fences, legal rules are notcharacterized for the goals-values they are directed to fulll(much as ‘stop’ lights can be used indifferently to slow or speedup trafc) but for the function they play (as trafc lights aredirected to inuence, in one direction or another, the behaviorof drivers). 36

Scandinavian legal realists then consider the law as having arigid nature in relation to the values expressed in the political are-na. A legal phenomenon is always the same: it is a stimuli-response

mechanism regardless of whether it is directed at fullling the valueof protecting individual private property, as in a capitalistic eco-nomic system, or the value of substituting it with collective rights,as in a communist system. A norm is legal, and therefore bindingto the community, even if it is highly unjust or undemocratic. 37

What is fundamental when speaking of a legal concept or categoryis that it works in reality as a stimulus to make people followcertain patterns of behavior.

The fact, however, that concepts and norms have to work inreality to be considered legal, introduces the second feature of Scandinavian realists’ depiction of the nature of law: its partial rigidity towards the political world. According to the Scandinavian

34 See Alf Ross, ‘Tu -tu ’, Harvard Law Review 70 (1957), 812–825, pp. 818–822.35 See Ross, On Law and Justice , op. cit., pp. 8, 32–33. See also Vilhelm Lundstedt,

Legal Thinking Revised. My Views on Law (Stockholm: Almqvist & Wiksell, 1956),pp. 34, 133; Karl Olivecrona, Law as Fact , 2nd edn. (London: Stevens & Sons, 1971),p. 135.

36 See, ibid., pp. 128–129.37 Albeit for a short period, this separation of values and the law brought

Olivecrona to publicly support the total validity of the Nazi regime as a legal system.See generally Karl Olivecrona, England oder Deutschland? (Lu beck: Reichskontorder Nordischen Gesellschaft – W. Limpert Verlagshaus, 1941).

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legal realists, the law has the quality to bind a certain communityor certain judges to certain patterns of behaviors, as long as thelaw is valid. ‘Validity’, however, is a quality of the law and of legalcategories that cannot be derived from the same legal system as,for example, it is for Kelsen and his Basic Norm. 38 The source of validity has to be found outside the law, namely within the space-time coordinates of the empirical reality.

A legal norm or concept is considered valid, and thereforetransformed from being a mere declaration of intent to becominga binding statement, as soon as it is ‘in force’. Norms and con-

cepts are legal as soon as the majority of addressees, or thecommunity, observe them. Moreover, in order to speak of a va-lid law, it is not only necessary that people observe and followit, but also that the law is perceived by this majority as ‘sociallybinding’. 39 Although introducing as constitutive elements of thelaw concepts such as ‘democratic’ or ‘just’ does not make anysense, according to the Scandinavian legal realists these conceptsare still of fundamental importance for having a binding law,i.e., a ‘real’ law. Legal categories and concepts in general must

reect the values of a certain community or among certainlegal actors. Only in this way will the law be followed by themajority of people and felt as binding by the community or the judges. 40

Ultimately, the Scandinavian legal realists adopt an interpreta-tion of the law as a complex of norms and categories of a rigid nature towards the world of values; norms and categories thatare always binding law, no matter the type of ideologies imple-mented in society. However, such rigidity is only partial , softenedby the necessity of opening up the law more to the surroundingpolitical and social environments. In order to remain validlaw or the law in force, the law then has to have a content of concepts and categories that somehow is shared and felt as

38 See Olivecrona, Law as Fact , op. cit., pp. 113–114.39 See Ross, On Law and Justice , op. cit., pp. 18, 34–38. Although reaching the

same conclusions, Olivecrona argues the necessity of dropping the very labeling‘validity of the law’ in order to avoid falling into the traditional natural law-positivelaw debates. See Olivecrona, Law as Fact , op. cit., p. 112.

40 See, e.g., Lundstedt, Legal Thinking Revised , op. cit., p. 150 or Olivecrona, Lawas Fact , op. cit., p. 272.

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binding by the majority of the population, or at least by the judges. 41

THE INTERSECTING D EPICTION : ‘LAW AND POLITICS ’

The legal realists’ manner of depicting the law/politics rela-tion can be considered an alternative to the traditional dyadic vi-sion of ‘law is politics’ (as in natural law theory) vs. ‘either lawor politics’ (as in Kelsen’s legal positivism). The portrayal by le-

gal realists can be labeled as ‘intersecting’, as the American andScandinavian legal realisms adopt a model depicting the law andpolitics as two intersecting phenomena. The legal realists recog-nize the existence of a normative hard-core in the legal phenom-enon, with actors and types of reasoning different andautonomous from the political ones, hence a rigidity of the law.Nevertheless, they also admit that these different legal and politi-cal worlds actually have boundaries that cross and to someextent overlap with each other, evoking a partial rigidity of law.

In contrast to natural law theories, the law for the realisms isconsidered as only partially colliding with politics and not totallyembedded into the political mass; the law maintains a certain degreeof separation. 42 Law is rigid towards politics as the law has a truenormative core, an area that can be dened, worked and investi-gated only using a specic theoretical apparatus produced by andinside the legal world. This core consists of viewing the law as amechanism of coercion that regardless of its value-content (politics)tends to be passed from one generation to the next. Over time,the law acquires a certain degree of autonomous legitimacy, i.e. a

41 See Olivecrona, Law as Fact , op. cit., p. 111. Actually, one of the recurrentcriticisms against Scandinavian legal realists is the very impossibility of combiningthese two ideas: a specic and autonomous hard-core of the law and, at the sametime, its empirical nature, i.e., its ‘‘existing’’ only when and if other socio-psycho-logical components are present. See, e.g., Jes Bjarup, ‘Legal Realism or Kelsen versusHa gerstro ¨m’, Rechtsstheorie 9 (1986), 243–257, pp. 247–251 and generally JacobSundberg, Ha ¨ gerstro ¨ m and Finland’s Struggle for Law (Littleton, CO: Rothman,1983).

42 As to the view of traditional natural law theory on this issue, see, e.g., Finnis,Natural Law and Natural Rights , op. cit., pp. 147–150, 276 or John Finnis, ‘On theIncoherence of Legal Positivism’, Notre Dame Law Review 75 (2000), 1597–1611,pp. 1610–1611.

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legitimacy built more on the specic ways a certain rule is enactedand implemented (its normative features) than on its content (itspolitical goals). As for the Kelsenian legal positivism, the law then isperceived as a technology, with its own space and its own rules. 43

Legal realists, in considering the law as rigid towards politics,then mirror one of the features of contemporary legal phenome-non. A fundamental ontological gap exists between law and politicsmainly due to the specialization of the law. At least in moderntimes, these have diverged into two different means of ‘forcing’ orconvincing people onto paths that they otherwise would not have

followed. For example, judges are politically inuenced in theirdecisions but, at the same time, they must rationalize this inuenceagainst the background of their legal education and the limits (ordirections) imposed by predominant methods of legal reasoning. 44

Moreover, in this process of transforming politics into law, afundamental mediation role is played by legal actors and their wayof reasoning, a centrality mirrored by the primary focus the legalrealisms have given to the work of judges and lawyers in general inorder to understand what law is. 45 The legal realists not only point

out the complexity of the relationships between law and politics,

43 See, e.g., Llewellyn, ‘On Reading and Using the Newer Jurisprudence’, op. cit.,p. 589 or Alf Ross, Towards A Realistic Jurisprudence: A Criticism of the Dualism inLaw (Copenhagen: Ejnar Munksgaard, 1946), p. 72. See also Neil D. MacCormick,Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1997), p. 188. This isone of the main reasons why legal realisms sometimes are treated as a particularversion or spin-off of legal positivism. See Robert S. Summers, Instrumentalismand American Legal Theory (Ithaca, NY: Cornell University Press, 1982), pp. 20,176–190; Friedmann, Legal Theory , op. cit., p. 255; Jeremy Waldron, ‘‘‘Transcen-dental Nonsense’’ and System of Law’, Columbia Law Review 100 (2000), 16–53, p.31; and Leiter, ‘Legal Realism and Legal Positivism Reconsidered’, op. cit., pp. 300– 301. But see Bix, ‘Law as an Autonomous Discipline’, op. cit., pp. 978–980; AnthonyJ. Sebok, ‘Misunderstanding Positivism’, Michigan Law Review 93 (1995), 2054– 2132, p. 2094; and Herbert L. A. Hart, ‘Self-referring Laws’, in Herbert L. A. Hart,Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), 170–178,pp. 175–178.

44 See Freeman, Lloyd’s Introduction to Jurisprudence , op. cit., pp. 810–811 andMacCormick, Legal Reasoning and Legal Theory , op. cit., p. 188. Luhmann goesfurther and claims that nowadays the role of political actors operating in legislativebodies is not to create law but merely to choose from the bulk of legal categoriesalready available and produced by legal expertise through the centuries. See Luh-mann, A sociological theory of law , op. cit., pp. 159–160.

45 See Jeffrie G. Murphy and Jules L. Coleman, The Philosophy of Law: AnIntroduction to Jurisprudence (Totowa, NJ: Rowman & Allanheld, 1984), p. 40.

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but also stress the determinant role legal actors can play in suchrelationships, either in their theoretical functions as legal expertsadvising law-making authorities (as in Scandinavian legal realism)or in their more direct and practical role of judges, legislators andlaw professors (as for most American legal realists). 46

Despite this rejection of the view of the law as totally embeddedinto the political mass, the legal realists deviate from the Kelsenianmodel to the extent that this separation of law from politics is only partial . They continuously stress the fact that the law is more thana logical and closed system of rules written on paper, more than

the law-in-books . The law is an empirical phenomenon, constitutedby a combination of human behaviors and prevalent ideas amonghuman beings as to what constitutes the law. The law is primarilythe law-in-action .47

According to the legal realists, in order to fully see the law in allof its constitutive parts, it has to be placed in a position that some-what coincides with the area occupied by politics. This is becausethe legal realists perceive the law as written words, that is as the car-riers of the values of the writers, the goals they possess when writing

or implementing them in either judicial, legislative or doctrinal doc-uments. As a consequence, the idea of what the law is ends upincluding a normative hard-core but also elements of a non-norma-tive nature, in particular of sociological and political origins. 48

The main difference between the intersecting and Kelsenianlegal positivist depictions of the relations between law and politicsis not the fact that the latter somehow denies the existence of anoutside non-legal world; a world exercising its inuence on thestructures and on the very nature of law. Kelsen would never

46 See Ross, On Law and Society , op. cit., pp. 330–331; Olivecrona, Law as Fact ,op. cit., pp. 86–89, 92–93; Karl N. Llewellyn, ‘The Normative, The Legal, and TheLaw-Jobs’, Yale Law Journal 49 (1940), 1355–1400, pp. 1395–1397; and JeromeFrank, Courts on Trial: Myth and Reality in American Justice (Princeton: PrincetonUniversity Press, 1950), pp. 239–242. Critical to the concrete implications of suchvisions are Jacob Sundberg, ‘Scandinavian Unrealism: Co-report on ScandinavianLegal Philosophy’, Rechtsstheorie 9 (1986), 307–321, p. 312 and Duxbury, Patterns of American Jurisprudence , op. cit., pp. 149–155.

47 See Llewellyn, ‘Some Realism about Realism’, op. cit., p. 1237, points 5 and 6.See also Roscoe Pound, ‘Law in Books and Law in Action’, American Law Review 44(1910), 12–36, pp. 35–36.

48 See Ross, Towards a realistic jurisprudence , op. cit., p. 49. See also Friedmann,Legal Theory , op. cit., p. 296.

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support such a position. 49 The distinction between the legal real-ists and Kelsen lies in the fact that the characterization by legalpositivists forces the political values to be transformed into legalcategories before entering into and inuencing the legal world.For example, the widespread dissemination of the idea of democ-racy among judges does not have any impact on their legal reso-lutions of disputes, as long as ‘democracy’ is not translatedinto additional legal concepts, such as the ‘right to vote’ or ‘non-discrimination in wages’. The intersecting depiction embraced bythe legal realists, on the other hand, claims that political values

sometimes directly enter into the legal world and directly inuenceand shape the different legal concepts and categories. 50 For exam-ple, in studying the judicial creation of the legal category of strictliability, legal scholars also have to directly take into consider-ation as its constitutive part whether judges have been moldedand educated in an environment in which the idea of economicdemocracy has been disseminated.

In stressing this partiality of the separation between legal andpolitical phenomena, the legal realists then grasp the other fea-

ture of contemporary law: its politicization. Law is a tool in thehands of political actors for the implementation of their values,a tool whose structure is exible as to different purposes (values)as used by these actors. 51 This is a feature that, as pointed outmore recently by legal thinkers ranging from ‘inclusive’ legalpositivism to Dworkin, cannot leave the very nature of law unaf-fected. 52

49 See, e.g., Kelsen, The Pure Theory of Law , op. cit., p. 352; Hans Kelsen, General Theory of Law and State (Cambridge: Harvard University Press, 1949), Ch. 4; HansKelsen, ‘Foundations of Democracy’, Ethics LXVI (1955), 1–101, pp. 86–94; andgenerally Adolf Merkl, ‘Hans Kelsen als Verfassungspolitiker’, Juristische Bla ¨ tter 60(1931), 385–387.

50 See Brian Leiter, ‘Rethinking Legal Realism: Toward a Naturalized Jurispru-dence’, Texas Law Review 76:2 (1997), 267–315, p. 278.

51 This structural exibility of the law towards politics has led Leiter to dene theAmerican legal realists’ theory of adjudication as ‘‘naturalized jurisprudence,’’ i.e., asan empirical enquiry of what input in the minds of judges causes what output interms of judicial decisions. See ibid., pp. 311–314.

52 See, e.g., Wilfrid J. Waluchow, ‘Authority and the Practical Difference Thesis:A Defense of Inclusive Legal Positivism’, Legal Theory 6 (2000), 45–81, pp. 76–81;and Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press,1985), pp. 15–20. See also Joseph Raz, ‘On The Autonomy of Legal Reasoning’, inRaz, Ethics in The Public Domain , op. cit., 310–324, pp. 324.

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For example, if a statute uses the concept of the ‘social functionof private property’, the legal actors (e.g., judges) are then forcedto directly search in the extra-legal reality. Specically, the legalactors are compelled to embed the legal concept into the initialpolitical environment and to make reference to the kind of politicalvalues (e.g., social-liberal vs. socialistic) assumed to exist behind theconcept of the social function of private property. In other words,the increasing overlap of the legal world with the political one isrevealed (and sometimes caused, in particular in common-lawcountries) by the increasing use by legal interpreters of social, polit-

ical and economic evaluations.53

One of the fundamental reasons behind the modernity of theperception by legal realisms of the law/politics relation can betraced to the fact that while the natural law and classical legalpositivist traditions have been in existence since before the forma-tion of the contemporary welfare state system, these forms of legal realism are of recent formation, 54 emerging in Western legalcultures in the rst half of twentieth century. It follows quite nat-urally that these legal theories are the most likely to embrace a

vision of the relationships between law and politics mirroring thephenomena and dilemmas typical of the law in the contemporaryage. 55 Moreover, it is not a coincidence that other more recentlegal movements, distinct products of the twentieth century, claimroots either directly in legal realism (as with CLS) or its legalphilosophical sources (such as Holmes for Law and Economics). 56

53 See Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard UniversityPress, 1978), pp. 12 2–123; Michael D. A. Freeman, ‘Positivism And StatutoryConstruction: An Essay In The Retrieval Of Democracy’, in Stephen Guest (ed.),Positivism Today (Aldershot: Dartmouth Publishing Company, 1996), 11–28, p. 22;and Wilfrid J. Waluchow, ‘The Weak Social Thesis’, Oxford Journal of Legal Studies9:1 (1989), 23–55, pp. 25–26, 28–29, 52–55.

54 See, e.g., Sophocles, ‘Antigone’, in Sophocles, Antigone. The Women of Trachis.Philoctetes.Oedipus atColonus (Cambridge:HarvardUniversityPress, 1994),1–127,p. 45.

55 See Michael Martin, Legal Realism: American and Scandinavian (Vienna: PeterLang, 1997), p. 2.

56 See Anon., Round and Round the Bramble Bush: from Legal Realism to CriticalLegal Scholarship’, Harvard Law Review 95 (1982), 1669–1690, p. 1677; Brian Bix,Jurisprudence: Theory and Context , 3rd edn. (London: Sweet & Maxwell, 2003),pp. 185–186; and Joseph William Singer, ‘Legal Realism Now’, California Law Review76:2 (1988), 465–544, p. 468. But see Leiter, ‘Rethinking Legal Realism’, op. cit., pp. 271–274; and Morton J. Horwitz, The Transformation of American Law 1870–1960: TheCrisis of Legal Orthodoxy (Oxford: Oxford University Press, 1994), p. 270.

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Both forms of legal realism, then, present themselves as a newlegal theory for new times: an alternative to the stale debate be-tween legal positivism and natural law theories, betting the newpolitical form and structure of the community of the welfarestate. 57 So it is not a coincidence that one of the major criticismsagainst both the Scandinavian and American realisms is that theyin reality are legal-theoretical fac ades for new political forces pro-moting general social engineering programs, the Social democraticvalues in Scandinavia and Roosevelt’s New Deal in the UnitedStates. 58

CONCLUSION

This article began with the observation that in our age – in particularin national communities adopting a welfare state system of socio-political organization – the law is subject to a system encompassingtwo opposite ‘pulls’: on the one hand towards the political world,and at the same time away from it by becoming more and more

specialized. This system of dual forces does not leave the mannerby which contemporary legal theories perceive the law unaffected.Both the American and Scandinavian species of legal realism havemost accurately portrayed this dilemma in their concepts of how the nature of law relates to politics. These two forces pullingcontemporary law in opposite directions are the very reasonsunderpinning the legal realist’s depiction of law as a partially rigidphenomenon towards the values and processes occurring in thepolitical world. The law is a mechanism for affecting the behaviorof individuals authoritatively, i.e., in a manner different from politi-cal ‘persuasion’ or propaganda. Yet for such a mechanism to work

57 See, e.g., Ross, Towards a realistic jurisprudence , op. cit., pp. 11–13; Olivecrona,Law as Fact , op. cit., p. 77; and, in a more indirect form, Llewellyn, ‘On Reading andUsing the Newer Jurisprudence’, op. cit., pp. 586–589. But see Summers, ‘OnIdentifying and Reconstructing a General Legal Theory’, op. cit., p. 1021.

58 See Bjarup, ‘Legal Realism or Kelsen versus Ha gerstro ¨m’, op. cit., pp. 256–257;Edward G. White, ‘From Sociological Jurisprudence to Realism: Jurisprudence inSocial Change in Early Twentieth-Century America’, Virginia Law Review 58 (1972),999–1028, pp. 1013–1026; and, much more cautiously, Cotterrell, The Politics of Jurisprudence , op. cit., pp. 203–206. But see Horwitz, The Transformation of Amer-ican Law 1870–1960 , op. cit., pp. 219–220 as well as Alexander, ‘Comparing the TwoLegal Realisms’, op. cit., pp. 131–133.

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completely and properly (e.g., to be considered as binding by theaddressees) requires the inuence of distinctive values coming fromthe political world.

The legal realists have succeeded, at least in their idea of howlaw and politics relate, in their objective of portraying in contem-porary legal theory the reality of law in the welfare state: a realityin which legal and political phenomena present themselves as twointersecting worlds. The realists have succeeded as, in the end, theperception of law as having a partially rigid structure towards theworlds of values and their formation, has found its space both in-

side legal positivism and among natural law followers.59

This space within legal positivism can be seen in particular inthe recognition by Hart and contemporary legal positivism (both inits inclusive and exclusive form) that legal positivism should becharacterized not by positing an ontological separation between thelaw on the one hand, and the world of values on the other, butsimply a conceptual separation between the two. 60 Conversely, mostnatural law scholars recognize that while the law, in order to bedened as such, has to embrace and fulll certain goals, law-

making at times can take its own specic path, deviating from thatof fullling the ‘good of community’. 61

Only a few contemporary legal scholars today claim an indepen-dence of law from values and interests or, at the opposite end of the spectrum, the absolute interchangeability of legal and politicalcategories. Contemporary legal theories end up being stretched ona quantitatively and qualitatively broad spectrum of intermediary

59 See, e.g., generally Brian Bix, ‘Natural Law Theory’, in Dennis Patterson (ed.),A Companion to Philosophy of Law and Legal Theory (Oxford: Blackwell, 1996), 223– 240 and Philip E. Soper, ‘Some Natural Confusions About Natural Law’, MichiganLaw Review 90 (1992), 2394–2423, pp. 2394–2403. See also Duncan Kennedy, ‘TwoGlobalizations of Law and Legal Thought: 1850–1968’, Suffolk University LawReview 36 (2003), 631–679, pp. 678–679.

60 See Herbert L. A. Hart, ‘Postscript’, in Herbert L. A. Hart, The Concept of Law ,2nd edn. (Oxford: Clarendon Press, 1994), 238–276, pp. 240, 255. See also HerbertL. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), p. 55; TorbenSpaak, ‘Legal Positivism, Law’s Normativity, and the Normative Force of LegalJustication’, Ratio Juris 16:4 (2003), 469–485, p. 473; and Jules Coleman, ‘Rulesand Social Facts’, Harvard Journal of Law and Public Policy 14 (1991), 703–725, pp.715–717. But see Frederick Schauer, ‘Constitutional Positivism’, Connecticut LawReview 25 (1993), 797–828, pp. 800–801.

61 See Finnis, Natural Law and Natural Rights , op. cit., pp. 148–149. See alsoCotterrell, The Politics of Jurisprudence , op. cit., p. 148.

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positions, in which law is depicted as a mixture of autonomousproduct ( ratio ) and political inuences ( voluntas ).62 Almost all con-temporary legal theories have now arrived at the point of sharingthe same starting premise highlighted by the theoretical proposalsof the American and Scandinavian legal realists. That is to say, inthe contemporary age, legal and political phenomena are impor-tantly different, as well as presenting (with greater or lesser degreesof intensity and extent) regions of interaction. 63

Perhaps, indeed, when all is said and done, and at least onthe issue of the relations between law and politics, we are now all

realists.

Faculty of LawStockholm University,10691, Stockholm,SwedenE-mail: [email protected]

62 See Cotterrell, Law’s Community , op. cit., pp. 277–278, 319; and Cotterrell,‘Why Must Legal Ideas Be Interpreted Sociologically?’, Journal of Law and Society25 (1998), 171–192, p. 181. See, e.g., Habermas, Between Facts and Norms , op. cit., p.152.

63 See, e.g., Bix, ‘Law as an Autonomous Discipline’, op. cit., pp. 975–976, 985– 986.

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