- Most philosophers of law, following H.L.A. Hart, believe that the legal realists' rule-skepticism is not a coherent theory of law. Even Brian Leiter, who seeks to defend the realists against Hart, agrees that rule-skepticism fails as a theory of law. Indeed, an essential part of Leiter's rehabilitation of the realists is his argument that they did not mean to offer a theory of law at all.
This article is a defense of the realists' rule-skepticism as a theory of law. The heart of my argument is that their rule-skepticism was actually an attack, common among philosophical anarchists, on the ability of the law to provide citizens (and particularly judges adjudicating cases) with objective reasons for obedience. Seen in this light, the realists' seemingly absurd claims that legal rules do not exist start making a good deal of sense.
- The reason that the realists did not reintroduce legal obligation when adopting a normative perspective on the law is that they were committed to a second argument against legal rules, an argument with strong similarities to Dworkin’s critique of Hart. As we have seen, the realists agreed with Hart that the law depends upon social facts concerning official practices. Like Dworkin, however,the realists thought that the only available objective reasons forconformity to these practices are moral. Dworkin’s response is toadopt a type of natural law theory in which officials’ legal obligationsare a form of moral obligation. But natural law theory can succeed only if there is a moral duty to obey every valid law, something the realists rejected. They understood the law “as a means to social ends and not as an end in itself.” Disobedience might be morally justified: “Gone is the ancient assumption that law is because law is; there has come since, and remains, the inquiry into the purpose of what courts are doing, the criticism in terms of searching out purposes and criticizing means. Here value-judgments reenter the picture, and should.”
The realists did not merely believe that citizens have no moral duty to obey every valid law, they also believed that judges have no moral duty to enforce every valid law. This means that the facts concerning official practice that make something valid law must not be intrinsically morally salient for a judge. Since a promise to enforce the law is a fact that creates a prima facie moral duty, the realists must have thought that the facts concerning official practice do not necessarily involve promises on the part of participants. It is possible to become a judge without having promised, in either an express or implied fashion, to enforce all valid law.
Another Highly Recommended for Law's Aim in Law's Empire by John Gardner.