Getting Real or Staying Positive:LegalRealism(s),LegalPositivism and the Prospects of Naturalism in Jurisprudence

Abstract

The relationship between Legal Realism and Legal Positivism has been a recurrent source of debate. The question has been further complicated by the related difficulty of assessing the internal relationship between the two main original strands of Legal Realism: American and Scandinavian. This paper suggests considering American and Scandinavian Realism as instantiations of forward‐looking and backward‐looking rule skepticism respectively. This distinction brings into sharp relief not only the fundamentally different relationship between each of these two Realist schools and Legal Positivism but also their equally different potentials as starting points for naturalizing jurisprudence.

Naturalizing Alf Ross’s Legal Realism

“…logical positivism and the anti-metaphysical 8 Cf. Holtermann 2006, Spaak 2009, Mautner 2010. The former of these works was written in Danish and neither Spaak nor Mautner take it into account but proceed instead (as we shall see immediately below) on a very different conception of naturalism.…”