Getting Real or Staying Positive? – University of Copenhagen

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16 July 2013

Getting Real or Staying Positive?

Jakob v. H. HoltermannNew article by Jakob v. H. Holtermann on the philosophy of legal realism accepted for publication in Ratio Juris.

The relationship between legal realism and legal positivism has been a constant source of debate since the emergence of realist theories in the first half of the 20th century. The discussion has been further complicated by the related difficulty of assessing the internal relationship between the two main strands of legal realism: American and Scandinavian.

In his paper “Getting Real of Staying Positive? Legal Realism(s), Legal Positivism, and the Prospects of Naturalism in Jurisprudence” Jakob v. H. Holtermann introduces a distinction between two kinds of rule-skepticism – i.e. forward-looking and backward-looking rule-skepticism respectively – and he argues that American and Scandinavian realism should be seen as examples of these two kinds of rule-skepticism respectively.

Doing so gives us a clearer understanding i) of the relationship they each hold to legal positivism – American Realism comes out as a species of legal positivism, and Scandinavian Realism comes out as a distinct position; and ii) of the equally different prospects of naturalism in jurisprudence delivered by each of them – and hence of the degree to which legal science can and should be a part of the ongoing empirical turn in philosophy of science.

The article will be published in a forthcoming issue of Ratio Juris.