Holmes, Realism and Positivism

(sent to conlawprof)

1. One of the things I would do is ask yourself this question: what is "realism?" The word is very cheap these days. Law professors very often claim this word as a kind of badge of honor or something. The way law professors use the word "realism" reminds me the way that political scientists use the word "attitudes." It's not just me who notices this, by the way. In virtually any significant discussion about realism, you will find a person having to remind their contemporaries that the term isn't as sloganized as many people say. (One of the panel scholars at law and society was reminding "new realists" that they were not actually realist at all).

All that realism reduces to, philosophically, is the idea that judging is not a priori craft -- it isn't a self-contained orthodoxy. It doesn't take the form of a syllogism. Truths do not come deductively from premise to premise. Rather, it takes the form of "look at what results could be had and select among the best."  In theorizing about law and the state, however, it was common in Holmes' time to think of LEGISLATURES as being the ones performing this sort of cognitive labor. So if judges perform the sort of brain tasks that an idealized legislature would perform in a civil republic, it became logical to see legislatures as being more legitimate expositors of "law" for very obvious institutional reasons (elections, comprehensive policy planning, etc). And so, the idea of deference to clear positive law became an ethic that followed naturally from realism.

Holmes, therefore, has his hands in both cookie jars. It is true, however, that he created only one of the jars (realism), while only causing the other to ascend intellectually on its own. (That one was created by Austin, Hart, etc.)