Res Publica (2006) 12:295317 DOI 10.

1007/s11158-006-9010-y

Springer 2006

MAURO ZAMBONI

LEGAL REALISMS: ON LAW AND POLITICSw

ABSTRACT. The focus of this work is the issue of whether, and to what extent, the nature of the law is aected by politics, has been taken up by the American and Scandinavian legal realists. By the very fact of their being products of the sociopolitical conditions of the most recent century, the American and Scandinavian legal realisms are the movements that have most explicitly and systematically brought to the surface one particular characteristic phenomenon of contemporary Western legal systems: the existence of two basic forces simultaneously attracting and repelling, aecting the law in its relations with the political world. KEY WORDS: American legal realism, dilemma of law, law and politics, legal theory, Scandinavian legal realism, welfare state

The focus of this work is a specic issue that of whether and to what extent the nature of the law is affected by politics has been taken up by the American and Scandinavian legal realists. Despite some key differences, these two movements in legal philosophy share a similar general depiction, or model, of how the law relates to politics. This depiction offers an alternative to the accepted views embraced by traditional legal positivism and natural law theory. My contention is that the particular perception of legal phenomena offered by American and Scandinavian legal realists is more adequate to the complexities of the contemporary relation between law and politics than the well-established theories of natural law and legal positivism. Partly by the very fact of their being products of the socio-political conditions of

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

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the most recent century, these approaches have been most explicit and systematic in bringing to the surface one particular characteristic phenomenon of contemporary Western legal systems. This is the existence of two basic forces, simultaneously attracting and repelling, affecting the law in its relations with the political world. After a brief sketch of aspects of the terminology used in this article in the next section, the article addresses a series of interlocking issues. First, the complexity of present contemporary factual backgrounds characterizing the relationship of law and politics. Attention is focused in particular on the dualistic system of forces typical of the welfare state, forces pulling the law both towards and away from its political dimension. Second comes an outline of the effects such underpinnings have on traditional legal theories, as well as their conceptions as to whether the inner core of the legal phenomenon is affected by the political values as carried and the political functions as performed. The article then examines the stances taken towards the same issue by American and Scandinavian legal realisms. In contrast with natural law theory, both the American and Scandinavian Realists opt for a general idea of the rigidity of the law towards politics. In contrast to traditional legal positivism, meanwhile, the legal realists however consider this rigid nature of the law to be only partial in nature. As a consequence, a model dened as intersecting is presented, in the penultimate section of the article, as epitomizing the basic ideas of the legal realists as to how the legal phenomenon interacts with the political one.

PRELIMINARY CLARIFICATIONS

OF

KEY TERMS

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

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them, e.g., interest groups) through which such values are then chosen to be implemented by the public authoritative apparatus into the community using law-making.1 The second clarication has to do with the difculty in general when speaking of a movement or a stream of legal thinking. In the case of the legal realists, it is even more dicult because of their tendency, in particular in the United States, to cover a wide range of legal-theoretical positions.2 Moreover, it is difcult to nd common elements between the American and the Scandinavian legal realisms. They differ both in their theoretical premises (pragmatism in United States, the moral philosophy of the Swede Axel Ha gerstro m in Scandinavia) and in the focus of their investigations (the work of the courts in America, the statutory texts in Scandinavia). These differences have led some authors go so far as to state that the only thing these two movements have in common is that they bear the label of legal realism.3 Despite the position one may take with respect to these problems, an indirect goal of this article is to demonstrate, at least in the discussion as to politics, that the American and Scandinavian legal
See David Kairys, Introduction, in David Kairys (ed.), The Politics of Law: A Progressive Critique, 3rd edn. (New York: Basic Books, 1998), 120, p. 5, 1415; Alf Ross, On Law and Justice (London: Stevens & Sons, 1958), pp. 334339; Hans Kelsen, 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. 2944, 3740. But see Roberto Mangabeira Unger, The Critical Legal Studies Movement, Harvard Law Review 96 (1982), 561675, p. 568; Neil MacCormick, Institutional Normative Order: A Conception of Law, Cornell Law Review 82 (1997), 10511070, pp. 10621064; and the classic denitions for political science in David Easton, A Systems Analysis of Political Life (Chicago: The University of Chicago Press 1979), pp. 2133; and Robert A. Dahl, Modern Political Analysis, 5th edn. (Englewood Clis: Prentice Hall International, 1984), pp. 910. 2 See Karl N. Llewellyn, Some Realism about Realism, Harvard Law Review 44 (1931), 12221264, pp. 12331234. See also Neil Duxbury, Patterns of American Jurisprudence (Oxford: Clarendon Press, 1995), pp. 6871. 3 See Wolfgang Friedmann, Legal Theory (New York: Columbia University Press, 5th ed., 1967), pp. 304305; Hilaire McCoubrey and Nigel D. White, Textbook on Jurisprudence, 3rd edn. (London: Blackstone Press Limited, 1999), p. 178; Michael D. A. Freeman, Lloyds Introduction to Jurisprudence, 7th edn. (London: Sweet & Maxwell Ltd., 2001), p. 872; and Gregory S. Alexander, Comparing the Two Legal Realisms American and Scandinavian, American Journal of Comparative Law 50 (2002), 131174, p. 132. As to the philosophical roots of the American and Scandinavian legal realisms, see, e.g., Jerome Frank, Law and the Modern Mind (London: Stevens & Sons Ltd., 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 perception of the law as neither totally outside of nor completely embedded into the political mass, but as intersecting the political world.
THE DILEMMA
OF

LAW

IN THE

CONTEMPORARY AGE

Beginning already with the very birth of the nation state, attention has specically been devoted to explaining the interrelationship of legal and political phenomena. Machiavelli and Hobbes stand out clearly for their early lucid and penetrating analyses of issues arising at the law/politics conjuncture in modern times.4 This theoretical interest in general has its roots in the fact that, as pointed out by Ju rgen Habermas, the very complex of law and political power characterizes the transition from societies organized by kinship to those early societies already organized around states.5 Closer to the present, Rudolph von Jhering has assumed a central position among those legal scholars attempting to understand and navigate the relations between law and politics.6 Despite so much attention, this issue of positioning the law with respect to the political realm is far from being settled. On the contrary: the distances between opinions as to issues of law and politics have considerably increased over time, in particular since the birth and consolidation of the welfare state. This disagreement as to the relation of law and politics has increased in part as forms of political organization associated with the welfare state require as one of their fundamental features the very use of the law as an
` Machiavelli, The Prince (London: J. M. Dent & Sons, 1908) See, e.g., Niccolo [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 Discourse Theory 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. 12, 2529, 6163. 7 See Lawrence M. Friedman, Introduction, Theoretical Inquiries in Law 4 (2003), 438450, p. 446; and Gunther Teubner, Juridication: Concepts, Aspects, Limits, Solutions, in Gunther Teubner (ed.), Juridication of Social Spheres: A Comparative Analysis in the Areas of Labor, Corporate, Anti-Trust and Social Welfare (Berlin: Walter de Gruyter, 1986), 348, pp. 34. For the more practical impacts of ` e Ro juridication on dierent areas of law, see generally Rene mkens, Law as Trojan Horse: Unintended Consequences of Right-Bases Interventions to Support Battered Women, Yale Journal of Law and Feminism 13 (2001), 265291.
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instrument for social engineering.7 This feature, in its turn, has given rise to the phenomenon of a systems conict, an aspect of the more general dilemmas of law in the Welfare State.8 This phenomenon arises due to the co-existence in this age of two systemic forces towing the law in opposite directions, affecting the very nature of law as a social phenomenon.
THE POLITICIZATION CONTEMPORARY LAW

OF

One of these forces pulls in the direction of concentrating the law into the hands of politicians, therefore requiring a law more obedient in nature to political needs than, for example, to those of a systematic legal development. In other words, law becomes more politicized, i.e., structurally more exible to the reasons of politics.9 Politicization of the law is the phenomenon by which political and legal actors make increasing use of the law with the primary (and often exclusive) objective of implementing their own values and political priorities. Actors belonging both to the political and the legal arenas tend to subvert the traditional internal rules concerning the process of law-making (such as the formal consistency of the legal order) in favor of a more pragmatic, results-orientated approach (for example, introducing a certain model of behavior into a community). As pointed out by Niklas Luhmann, political control of the law is characterized by the fact that it operates within an incongruent perspective, in that it judges decisions with a view not to their correctness, but to their consequences.10 By no means did this phenomenon of the politicization of the law originate in the twentieth century. Historically, political powers
8

Gunther Teubner, The Transformation of Law in the Welfare State, in Gunther Teubner (ed.), Dilemmas of Law in the Welfare State (Berlin: Walter de Gruyter, 1986), 310, pp. 67. 9 In particular, Carl Schmitt has stressed this feature of the modern relations between law and politics. See Schmitt, Verfassungslehre (Berlin: Duncker & Humblot, 1928), 22. See also Richard A. Posner, The Decline of Law as an Autonomous Discipline: 19621987, Harvard Law Review 100 (1987), 761780, pp. 766767, 773774 and, as an actual example of such exibility, Robert Glicksman and Christopher H. Schroeder, EPA and the Courts: Twenty Years of Law and Politics, Law and Contemporary Problems 54 (1991), 249310, p. 250. 10 Niklas Luhmann, A Sociological Theory of Law (London: Routledge & Kegan Paul, 1985), p. 224 (emphasis in the original).

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(including here also powers of a moral, religious, social, cultural and economic nature) have made a quantitatively extensive use of the law in order to get their values implemented into a community.11 What is typical of modern times, at least in Western legal orders, is the fact that the politicization of the law has reached a different qualitative level. Previously, the law was considered one among many tools at the disposal of the political powers. Today it is the favored instrument for enforcing values into a community, as:
[t]oday the most common form of legitimacy is the belief in legality, the compliance with enactments which are formally correct and which have been made in the accustomed manner.12

One effect of this qualitative development is traceable in a contemporary phenomenon affecting almost every legal order around the world on both a practical and theoretical level: the intensication of the debate concerning judicial activism.13 Judicial activism is a sign of the politicization of the law, as it comprises judicial activity directed at stretching the formal structures and letter of the law (in particular at the constitutional level) in order to implement those values which political actors are unable to sense in the community, are unable to transform into legislative measures, or that are simply part of the political baggage of the judges.14
One example is the use of Roman law in 1314th centuries by jurists loyal to the emperor as against the legal foundation of the popes authority. See George H. Sabine, A History of Political Theory, 3rd edn. (New York: Holt Rinehart & Winston, 1964), pp. 277280. 12 Max Weber, Economy and Society: An Outline of Interpretive Sociology (Berkeley: University of California Press, 1978), p. 37 (emphasis in the original). See also 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 the Law (New York: Touchtone/Simon and Schuster, 1990), p. 3. See also David L. Anderson, When Restraint Requires Activism: Partisan Gerrymandering and the Status Quo Ante, Stanford Law Review 42 (1990), 15491577, p. 1570; and Mark V. Tushnet, Comment on Cox, Maryland Law Review 47 (1987), 147154, pp. 147153. 14 In this way, judicial activism is value-free in the sense that it works in the same way, regardless of the contents (e.g., liberal or conservative) of the values it is to implement. See Neil Duxbury, The Theory and History of American Law and Politics, Oxford Journal of Legal Studies 13 (1993), 249270, p. 252. But see John Ferejohn, Judicializing Politics, Politicizing Law, Law and Contemporary Problems 65 (2002), 4168, p. 49, 5557.
11

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301

THE SPECIALIZATION

OF

CONTEMPORARY LAW

The increasing complexity of the political world, and the extension of the number of areas it recognizes as its domain, and therefore regulates by law, in their turn cause another force pulling the law in the opposite direction. Through increasing use by political actors as an instrument to inuence society, the law grows more and more complex and specialized, and therefore requires a specic and unique core of knowledge for production and functioning. The specialization 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 from the mechanisms (though not the content) of law-making, as well as their substitution by the specic knowledge and discourse provided by specic actors namely, lawyers. As with politicization, the specialization of legality is not a product of the twentieth century. Beginning in ancient Rome through the Middle Ages, a branch of human knowledge and a group of actors dealing specically with the law and its making has existed. What characterizes the contemporary legal phenomenon is the high degree of its specialization, paralleling (and somehow connected with) an equally strong politicization of the law.16 The recent shift in many Western countries to a more deregulated or weaker version of the welfare state does not appear to have affected the strength of those two divergent systemic forces. On the
Roger Cotterrell, Laws Community: Legal Theory in Sociological Perspective (Oxford: Clarendon Press, 1995), p. 12. See also Robert S. Summers, Law as a Type of Machine Technology, in Robert S. Summers, Essays in Legal Theory (Dordrecht: Kluwer Academic Publishers, 2000), 4354, p. 49; and Joseph Raz, The Inner Logic of Law, in Raz, Ethics in The Public Domain, op. cit., 222237, pp. 236 237. 16 See, e.g., Alan Watson, Roman Law & Comparative Law (London: The University of Georgia Press, 1991), p. 104; Pierre Bourdieu, The Force of Law: Toward a Sociology of the Juridical Field, Hastings Law Journal 38 (1987), 814853, pp. 835836, 841; Alan Hunt, The Politics of Law and the Law of Politics, in Kaarlo Tuori, Zenon Bankowski and Jyrki Uusitali (eds), Law and Power: Critical and Socio-Legal Essays (Liverpool: Deborah Charles Publications, 1997), 5183, pp. 8283; 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), 335348, p. 346; and Cotterrell, Laws Community, 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 hands of politicians has increased.17 This growing specialization is echoed in the degree of penetration of the law in different areas of human activity, for example with the phenomenon of over-regulation both in the United States and in the European Union. This also increases the specicity of the area of expertise required of lawyers. For example, historically there basically was simply one distinction drawn at bar, between civil and criminal lawyers. Today, lawyers specialize to such a degree that they may, for example, be experts solely in one specic aspect of the legal process, such as the ramications as to employment contracts with respect to corporate take-overs. Last but not least, this growing specialization also becomes visible in the training required for future lawyers, for example in the increasing number of specialized courses and curricula given by law faculties.18 Again, these tendencies by which the law is politicized or framed in spaces of autonomy, are not exclusive to the contemporary age. The simultaneous and increasing intensity of the forces pulling law both towards and away from politics, and the tensions they engender within the legal phenomenon, are today characterizing elements of the systems conict. It is in the legal systems of the very contemporary Western states that law-making continually disrupts the tendencies to ratio in law, so that lawyers are engaged in a permanent repair job on laws edices of doctrinal reason.19

See, e.g., Freeman, Lloyds Introduction to Jurisprudence, op. cit., p. 1047; Mary Ruggie, The Paradox of Liberal Intervention: Health Policy and the American Welfare State, American Journal of Sociology 97 (1992), 919944, pp. 927940; and Robert W. Gordon, A New Role For Lawyers? The Corporate Counselor after Enron, Connecticut Law Review 35 (2003), 11851217, p. 1211. But see Joseph Raz, Government by Consent, in Raz, Ethics in The Public Domain, op. cit., 339353, pp. 339340. 18 See Robert C. Ellickson, Taming Leviathan: Will the Centralizing tide of the Twentieth Century Carry into the Twenty-rst?, Southern California Law Review 74 (2000), 101118, pp. 101; Andrew D. Abbot, The System of Professions: An Essay on the 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), 437484, pp. 438445. See also Weber, Economy and Society, op. cit., p. 895. 19 Cotterrell, Laws Community, op. cit., p. 319 (emphasis in the original).

17

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303
THEORY

CONTEMPORARY LAW

AND

CONTEMPORARY LEGAL

The very fact that these contemporary tensions stretch the law towards and, at the same time, away from politics, cannot leave the work of legal scholars unaffected. As pointed out by Duxbury, the political nature of law represents a fundamental if not the fundamental problem of modern jurisprudence.20 The traces of these forces as operating on modern Western legal systems can then be detected in the positions taken by contemporary legal theories as to the issue of law and politics. Contemporary legal scholars are inclined to be attracted to a dyadic way of solving the law and politics dilemma. As pointed out by Roger Cotterrell, contemporary legal theories tend to depict the legal phenomenon either as being essentially voluntas regis (i.e., law shaped by political powers) or as dominated by its own ratio (i.e., law as shaped by its internal rationality).21 Contemporary legal theories then tend to shift between two extremes or, as one can call them, 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., whether it tends to adapt its forms and its nature in accordance with the political substances it carries (law is politics). This feature of the law is pointed out in particular by natural law theory, e.g., the theory of John Finnis. The other ideal-type solution is to consider the law as tending towards rigidity, i.e., as tending to keep the same forms and mechanisms regardless of content (law vs. politics). This

Duxbury, The Theory and History of American Law and Politics, op. cit., p. 270. See also Joseph Raz, Disagreement in Politics, American Journal of Jurisprudence 43 (1998), 2552, p. 26; and Habermas, Between Facts and Norms, op. cit., pp. 388390. 21 See Cotterrell, Laws Community, op. cit., pp. 165166, 317320. 22 It is true that the typology of law is politics vs. either law or politics condenses that which in reality is a more complex phenomenon: the universe of differing answers given by contemporary legal theories as to the central question of how the law relates to politics. Even within the work of the same individual legal scholar, it can 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. 148149 and Roger Cotterrell, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (London: Butterworths, 1989), p. 148. Despite this limitation typical of every generalization, it can be maintained that this typology covers the vast majority of contemporary legal theories.

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feature is stressed in particular by Kelsen and his idea of law and politics as two autonomous phenomena.23 The dyadic typology of depicting the relations between law and politics in terms of law is politics vs. either law or politics is however incomplete, as it ignores a third way of looking at the issue, namely the one advocated by the American and Scandinavian legal realisms.

POLITICS, LAW

AND

AMERICAN LEGAL REALISM

The complex and, to some extent, contradictory relation of contemporary law towards politics is mirrored in the depiction by American legal realism of the relations between the two.24 For American legal realism, the complexity of the nature of law originates in the very fundamental features of the legal phenomenon, which they understand as a mixed construction of normative elements (decisions of the courts) and socio-psychological elements (judicial behaviors). According to American legal realists, the rigidity of the law towards politics exists in their basic assumption that the law is not simply paper rules. The law is also predominantly the result of the work of the courts and their decisions in concrete cases.25 This identication of the law with the decisions of the courts leads to the rejection of any ontology as to the legal phenomenon that attempts to establish the basis of the law elsewhere, in particular in the value world (as done by natural law scholars). On the path paved by Oliver W. Holmes, Jr., American realists delineate a border between the legal phenomenon, i.e., the decisions of the courts, and the values (or politics) this phenomenon is directed to implement in the community. The ought-statements forming the judicial decisions are labeled legal regardless
See, e.g., John Finnis, The Authority of Law in the Predicament of Contemporary Social Theory, Notre Dame Journal of Law, Ethics and Public Policy 1 (1984), 115137, p. 133; Finnis, Natural Law and Natural Rights, op. cit., pp. 147150, 154197; Hans Kelsen, The Pure Theory of Law (Berkeley: University of California Press, 1970), pp. 8991; and Hans Kelsen, The Pure Theory of Law and Analytical Jurisprudence, Harvard Law Review 55 (1941), 4470, pp. 4548. 24 See Karl N. Llewellyn, A Realistic Jurisprudence The Next Step, Columbia Law Review 30 (1930), 431465, p. 431. 25 See, ibid., pp. 447448.
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305

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

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

For the American legal realists, the rigidity of the law is also ensured by the fact that legal rules and concepts structuring the law are characterized as being linguistically indeterminate. The large number of precedents, techniques to evaluate such precedents and established rules underpinning the decisions of the courts are often characterized as being linguistically open, usable in different directions.27 This view of the indeterminacy of the legal language does not necessarily imply a exible concept of the law towards politics, i.e., an idea that the determinacy of the legal language has to be found referring to values produced outside the legal world. Just the opposite, one of the central themes for American realists is to improve as much as possible the predictability of judicial decisions. This is to be done looking primarily (but not exclusively) into the same legal worlds categories and concepts, into the judicial decisions and their legal language. Indeed, judges choose from among dierent legal constructions, i.e., dierent normative categories, and not from among dierent values (at least not directly).28 However, this choice by judges from among different legal categories is the point at which American legal realists begin to open the structures of law. They make the law more exible, or better yet, only partially rigid towards the political world. In fact,

26 Felix S. Cohen, The Ethical Basis of Legal Criticism, Yale Law Journal 41 (1931), 201220, p. 204 (my emphasis); cf. Oliver W. Holmes, The Path of the Law, Harvard Law Review 10: 8 (1897), 457478, pp. 459460 (1897). 27 See, e.g., Felix S. Cohen, Transcendental Nonsense and the Functional Approach, Columbia Law Review 35 (1935), 809849, p. 811. But see, ibid., p. 822. A classical example of this open language is the nebulous prohibition in the Sherman Antitrust Act against every contract... in restraint of trade or commerce among the several states, 15 U.S.C. 1 (1990). See also Frank, Law and the Modern mind, op. cit., pp. 2224. 28 As stressed by Llewellyn, the eld of free play for Ought in appellate courts is vastly wider than traditional Ought-bound thinking ever has made clear. This, within the connes of precedent as we have it, within the limits and on the basis of our present [legal] order. Llewellyn, Some Realism about Realism, op. cit., p. 1252 (emphasis in the original). See also William Twining, Karl Llewellyn and the Realist Movement (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 at the center of a vast and empty stadium. The angle and distance from which that case 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 different legal-conceptual structures that are law, is the moment when judges are most heavily inuenced by the value environment in which they live, work and have been educated. It is this very idea that the law is that which the judges produce, and not that which is in the statute books, that makes the American realist emphasize how the social and political environments in which judges operate have to be taken into consideration when dealing with the issue of what the law is. Only after this is done can one truly understand how and why a certain rule, concept or category has been created or chosen in a judicial decision to become law.30 The realist idea of law then leaves relevant spaces (although inside a framework of rigidity of the law) to the political world. The orientation by the judiciary in favor of giving normative status to one concept (for example the normative construction of the prohibition of contracts unreasonably restricting trade) instead of the other (for example the prohibition of every contract restricting trade) 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 Association Journal XIV (1928) 71163, p. 73. See also Karl N. Llewellyn, On Reading and Using the Newer Jurisprudence, Columbia Law Review 40 (1940), 581614, pp. 593594 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 human backgrounds. Llewellyn, Some Realism about Realism, op. cit., p. 122. See also Karl 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), 233246, p. 233. Cf. Ronald Dworkin, Laws 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. 5563. 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 Publications, 1991), p. 41. See also Brian Leiter, Legal Realism, in Dennis Patterson, A Companion to the Philosophy of Law and Legal Theory (Oxford: Blackwell, 1996), 261279, p. 270.

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307

In summary, American realists consider the law as rigid towards politics because the law is that which is decided by judges, and judges allow the values of the political world to enter into the law only if the values take the form of legal concepts and categories as available or newly constructed.32 However, it is only a partial rigidity of the law towards the political world. As legal language is vague and available precedents endless and often contradictory, judicial decisions are inuenced by the values they share (or do not share). Therefore, the law can be fully understood in all its fundamental components only if the value environment is taken into consideration as signicantly aecting the law itself.33
SCANDINAVIAN LEGAL REALISM PARTIAL RIGIDITY LAW

AND THE

OF

Although coming from a different theoretical background, and different premises, Scandinavian legal realists parallel their American colleagues in that the Scandinavians also tend to embrace an idea of a partial rigidity in the nature and structure of the law towards politics. In contrast to their overseas colleagues, however, the partial rigidity of law for the Scandinavian legal realist is not derived from an investigation of judge-made law. Scandinavian legal realists take another path and directly focus on the different concepts and categories that constitute the essence of the law: rights, duties, property, damages, etc. As a

See Llewellyn, A Realistic Jurisprudence, op. cit., p. 453; Twining, Karl Llewellyn and the Realist Movement, op. cit., p. 490. See also Freeman, Lloyds Introduction to Jurisprudence, op. cit., p. 1040; Robert S. Summers, On Identifying And Reconstructing A General Legal Theory Some Thoughts Prompted By Professor Moores Critique, Cornell Law Review 69 (1984), 10141046, p. 1018; Brian Leiter, Legal Realism, Hard Positivism, and the Limits of Conceptual Analysis, in Jules Coleman (ed.), Harts Postscript: Essays to the Postscript to the Concept of Law (Oxford: Oxford University Press, 2001), 355370, p. 355. But see Brian Bix, Law as an Autonomous Discipline, in Peter Cane and Mark Tushnet (eds), The Oxford Handbook of Legal Studies (Oxford: Oxford University Press, 2003), 975987, 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, Lloyds Introduction to Jurisprudence, op. cit., p. 810; and Brian Leiter, Legal Realism and Legal Positivism Reconsidered, Ethics 111 (2001), 278301, p. 285.

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result of their investigations, Scandinavian realists draw two concurring ideas of the nature of the law. First, legal concepts and categories per se are detached from any system of moral, religious or political values; the concepts of rights or duties are as attached to moral or political values as much as is the expression tu-tu in other words, not at all.34 The law is a complex of linguistic or symbolic signals enacted for the purpose of provoking a certain behavior or non-behavior in the addressees; they are directives showing the paths the community (Lundstedt, Olivecrona) or the judges (Ross) ought to follow.35 Similar to trafc lights or fences, legal rules are not characterized for the goals-values they are directed to fulll (much as stop lights can be used indifferently to slow or speed up trafc) but for the function they play (as trafc lights are directed to inuence, in one direction or another, the behavior of drivers).36 Scandinavian legal realists then consider the law as having a rigid nature in relation to the values expressed in the political arena. A legal phenomenon is always the same: it is a stimuli-response mechanism regardless of whether it is directed at fullling the value of protecting individual private property, as in a capitalistic economic system, or the value of substituting it with collective rights, as in a communist system. A norm is legal, and therefore binding to the community, even if it is highly unjust or undemocratic.37 What is fundamental when speaking of a legal concept or category is that it works in reality as a stimulus to make people follow certain patterns of behavior. The fact, however, that concepts and norms have to work in reality 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
See Alf Ross, Tu -tu , Harvard Law Review 70 (1957), 812825, pp. 818822. See Ross, On Law and Justice, op. cit., pp. 8, 3233. 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. 128129. 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: Reichskontor der Nordischen Gesellschaft W. Limpert Verlagshaus, 1941).
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legal realists, the law has the quality to bind a certain community or certain judges to certain patterns of behaviors, as long as the law is valid. Validity, however, is a quality of the law and of legal categories 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 spacetime coordinates of the empirical reality. A legal norm or concept is considered valid, and therefore transformed from being a mere declaration of intent to becoming a binding statement, as soon as it is in force. Norms and concepts are legal as soon as the majority of addressees, or the community, observe them. Moreover, in order to speak of a valid law, it is not only necessary that people observe and follow it, but also that the law is perceived by this majority as socially binding.39 Although introducing as constitutive elements of the law concepts such as democratic or just does not make any sense, according to the Scandinavian legal realists these concepts are 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 certain legal actors. Only in this way will the law be followed by the majority of people and felt as binding by the community or the judges.40 Ultimately, the Scandinavian legal realists adopt an interpretation of the law as a complex of norms and categories of a rigid nature towards the world of values; norms and categories that are always binding law, no matter the type of ideologies implemented in society. However, such rigidity is only partial, softened by the necessity of opening up the law more to the surrounding political and social environments. In order to remain valid law or the law in force, the law then has to have a content of concepts and categories that somehow is shared and felt as

See Olivecrona, Law as Fact, op. cit., pp. 113114. See Ross, On Law and Justice, op. cit., pp. 18, 3438. 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-positive law debates. See Olivecrona, Law as Fact, op. cit., p. 112. 40 See, e.g., Lundstedt, Legal Thinking Revised, op. cit., p. 150 or Olivecrona, Law as 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 DEPICTION: LAW

AND

POLITICS

The legal realists manner of depicting the law/politics relation can be considered an alternative to the traditional dyadic vision of law is politics (as in natural law theory) vs. either law or politics (as in Kelsens legal positivism). The portrayal by legal realists can be labeled as intersecting, as the American and Scandinavian legal realisms adopt a model depicting the law and politics as two intersecting phenomena. The legal realists recognize the existence of a normative hard-core in the legal phenomenon, with actors and types of reasoning different and autonomous from the political ones, hence a rigidity of the law. Nevertheless, they also admit that these different legal and political worlds actually have boundaries that cross and to some extent overlap with each other, evoking a partial rigidity of law. In contrast to natural law theories, the law for the realisms is considered as only partially colliding with politics and not totally embedded into the political mass; the law maintains a certain degree of separation.42 Law is rigid towards politics as the law has a true normative core, an area that can be dened, worked and investigated only using a specic theoretical apparatus produced by and inside the legal world. This core consists of viewing the law as a mechanism 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
See Olivecrona, Law as Fact, op. cit., p. 111. Actually, one of the recurrent criticisms against Scandinavian legal realists is the very impossibility of combining these two ideas: a specic and autonomous hard-core of the law and, at the same time, its empirical nature, i.e., its existing only when and if other socio-psychological components are present. See, e.g., Jes Bjarup, Legal Realism or Kelsen versus Ha gerstro m, Rechtsstheorie 9 (1986), 243257, pp. 247251 and generally Jacob Sundberg, Hagerstrom and Finlands 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. 147150, 276 or John Finnis, On the Incoherence of Legal Positivism, Notre Dame Law Review 75 (2000), 15971611, pp. 16101611.
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legitimacy built more on the specic ways a certain rule is enacted and implemented (its normative features) than on its content (its political goals). As for the Kelsenian legal positivism, the law then is perceived 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 phenomenon. A fundamental ontological gap exists between law and politics mainly due to the specialization of the law. At least in modern times, these have diverged into two different means of forcing or convincing people onto paths that they otherwise would not have followed. For example, judges are politically inuenced in their decisions but, at the same time, they must rationalize this inuence against the background of their legal education and the limits (or directions) imposed by predominant methods of legal reasoning.44 Moreover, in this process of transforming politics into law, a fundamental mediation role is played by legal actors and their way of reasoning, a centrality mirrored by the primary focus the legal realisms have given to the work of judges and lawyers in general in order to understand what law is.45 The legal realists not only point out the complexity of the relationships between law and politics,
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 in Law (Copenhagen: Ejnar Munksgaard, 1946), p. 72. See also Neil D. MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1997), p. 188. This is one of the main reasons why legal realisms sometimes are treated as a particular version or spin-o of legal positivism. See Robert S. Summers, Instrumentalism and American Legal Theory (Ithaca, NY: Cornell University Press, 1982), pp. 20, 176190; Friedmann, Legal Theory, op. cit., p. 255; Jeremy Waldron, Transcendental Nonsense and System of Law, Columbia Law Review 100 (2000), 1653, 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. 978980; Anthony J. 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), 170178, pp. 175178. 44 See Freeman, Lloyds Introduction to Jurisprudence, op. cit., pp. 810811 and MacCormick, Legal Reasoning and Legal Theory, op. cit., p. 188. Luhmann goes further and claims that nowadays the role of political actors operating in legislative bodies is not to create law but merely to choose from the bulk of legal categories already available and produced by legal expertise through the centuries. See Luhmann, A sociological theory of law, op. cit., pp. 159160. 45 See Jeffrie G. Murphy and Jules L. Coleman, The Philosophy of Law: An Introduction to Jurisprudence (Totowa, NJ: Rowman & Allanheld, 1984), p. 40.
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but also stress the determinant role legal actors can play in such relationships, either in their theoretical functions as legal experts advising law-making authorities (as in Scandinavian legal realism) or in their more direct and practical role of judges, legislators and law professors (as for most American legal realists).46 Despite this rejection of the view of the law as totally embedded into the political mass, the legal realists deviate from the Kelsenian model to the extent that this separation of law from politics is only partial. They continuously stress the fact that the law is more than a logical and closed system of rules written on paper, more than the law-in-books. The law is an empirical phenomenon, constituted by a combination of human behaviors and prevalent ideas among human beings as to what constitutes the law. The law is primarily the law-in-action.47 According to the legal realists, in order to fully see the law in all of its constitutive parts, it has to be placed in a position that somewhat coincides with the area occupied by politics. This is because the legal realists perceive the law as written words, that is as the carriers of the values of the writers, the goals they possess when writing or implementing them in either judicial, legislative or doctrinal documents. As a consequence, the idea of what the law is ends up including a normative hard-core but also elements of a non-normative nature, in particular of sociological and political origins.48 The main difference between the intersecting and Kelsenian legal positivist depictions of the relations between law and politics is not the fact that the latter somehow denies the existence of an outside non-legal world; a world exercising its inuence on the structures and on the very nature of law. Kelsen would never
See Ross, On Law and Society, op. cit., pp. 330331; Olivecrona, Law as Fact, op. cit., pp. 8689, 9293; Karl N. Llewellyn, The Normative, The Legal, and The Law-Jobs, Yale Law Journal 49 (1940), 13551400, pp. 13951397; and Jerome Frank, Courts on Trial: Myth and Reality in American Justice (Princeton: Princeton University Press, 1950), pp. 239242. Critical to the concrete implications of such visions are Jacob Sundberg, Scandinavian Unrealism: Co-report on Scandinavian Legal Philosophy, Rechtsstheorie 9 (1986), 307321, p. 312 and Duxbury, Patterns of American Jurisprudence, op. cit., pp. 149155. 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), 1236, pp. 3536. 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 realists and Kelsen lies in the fact that the characterization by legal positivists forces the political values to be transformed into legal categories before entering into and inuencing the legal world. For example, the widespread dissemination of the idea of democracy among judges does not have any impact on their legal resolutions of disputes, as long as democracy is not translated into additional legal concepts, such as the right to vote or nondiscrimination in wages. The intersecting depiction embraced by the legal realists, on the other hand, claims that political values sometimes directly enter into the legal world and directly inuence and shape the dierent legal concepts and categories.50 For example, in studying the judicial creation of the legal category of strict liability, legal scholars also have to directly take into consideration as its constitutive part whether judges have been molded and educated in an environment in which the idea of economic democracy has been disseminated. In stressing this partiality of the separation between legal and political phenomena, the legal realists then grasp the other feature of contemporary law: its politicization. Law is a tool in the hands 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 out more recently by legal thinkers ranging from inclusive legal positivism to Dworkin, cannot leave the very nature of law unaffected.52
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; Hans Kelsen, Foundations of Democracy, Ethics LXVI (1955), 1101, pp. 8694; and generally Adolf Merkl, Hans Kelsen als Verfassungspolitiker, Juristische Blatter 60 (1931), 385387. 50 See Brian Leiter, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, Texas Law Review 76:2 (1997), 267315, p. 278. 51 This structural exibility of the law towards politics has led Leiter to dene the American legal realists theory of adjudication as naturalized jurisprudence, i.e., as an empirical enquiry of what input in the minds of judges causes what output in terms of judicial decisions. See ibid., pp. 311314. 52 See, e.g., Wilfrid J. Waluchow, Authority and the Practical Difference Thesis: A Defense of Inclusive Legal Positivism, Legal Theory 6 (2000), 4581, pp. 7681; and Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press, 1985), pp. 1520. See also Joseph Raz, On The Autonomy of Legal Reasoning, in Raz, Ethics in The Public Domain, op. cit., 310324, pp. 324.
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For example, if a statute uses the concept of the social function of private property, the legal actors (e.g., judges) are then forced to directly search in the extra-legal reality. Specically, the legal actors are compelled to embed the legal concept into the initial political environment and to make reference to the kind of political values (e.g., social-liberal vs. socialistic) assumed to exist behind the concept of the social function of private property. In other words, the increasing overlap of the legal world with the political one is revealed (and sometimes caused, in particular in common-law countries) by the increasing use by legal interpreters of social, political and economic evaluations.53 One of the fundamental reasons behind the modernity of the perception by legal realisms of the law/politics relation can be traced to the fact that while the natural law and classical legal positivist traditions have been in existence since before the formation of the contemporary welfare state system, these forms of legal realism are of recent formation,54 emerging in Western legal cultures in the rst half of twentieth century. It follows quite naturally that these legal theories are the most likely to embrace a vision of the relationships between law and politics mirroring the phenomena and dilemmas typical of the law in the contemporary age.55 Moreover, it is not a coincidence that other more recent legal movements, distinct products of the twentieth century, claim roots either directly in legal realism (as with CLS) or its legal philosophical sources (such as Holmes for Law and Economics).56
See Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978), pp. 12 2123; Michael D. A. Freeman, Positivism And Statutory Construction: An Essay In The Retrieval Of Democracy, in Stephen Guest (ed.), Positivism Today (Aldershot: Dartmouth Publishing Company, 1996), 1128, p. 22; and Wilfrid J. Waluchow, The Weak Social Thesis, Oxford Journal of Legal Studies 9:1 (1989), 2355, pp. 2526, 2829, 5255. 54 See, e.g., Sophocles, Antigone, in Sophocles, Antigone. The Women of Trachis. Philoctetes. Oedipus at Colonus (Cambridge: Harvard University Press, 1994), 1127, p. 45. 55 See Michael Martin, Legal Realism: American and Scandinavian (Vienna: Peter Lang, 1997), p. 2. 56 See Anon., Round and Round the Bramble Bush: from Legal Realism to Critical Legal Scholarship, Harvard Law Review 95 (1982), 16691690, p. 1677; Brian Bix, Jurisprudence: Theory and Context, 3rd edn. (London: Sweet & Maxwell, 2003), pp. 185186; and Joseph William Singer, Legal Realism Now, California Law Review 76:2 (1988), 465544, p. 468. But see Leiter, Rethinking Legal Realism, op. cit., pp. 27 1274; and Morton J. Horwitz, The Transformation of American Law 18701960: The Crisis of Legal Orthodoxy (Oxford: Oxford University Press, 1994), p. 270.
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Both forms of legal realism, then, present themselves as a new legal theory for new times: an alternative to the stale debate between legal positivism and natural law theories, betting the new political form and structure of the community of the welfare state.57 So it is not a coincidence that one of the major criticisms against both the Scandinavian and American realisms is that they in reality are legal-theoretical fac ades for new political forces promoting general social engineering programs, the Social democratic values in Scandinavia and Roosevelts New Deal in the United States.58

CONCLUSION

This article began with the observation that in our age in particular in national communities adopting a welfare state system of sociopolitical organization the law is subject to a system encompassing two 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 manner by which contemporary legal theories perceive the law unaected. Both the American and Scandinavian species of legal realism have most accurately portrayed this dilemma in their concepts of how the nature of law relates to politics. These two forces pulling contemporary law in opposite directions are the very reasons underpinning the legal realists depiction of law as a partially rigid phenomenon towards the values and processes occurring in the political world. The law is a mechanism for aecting the behavior of individuals authoritatively, i.e., in a manner dierent from political persuasion or propaganda. Yet for such a mechanism to work
See, e.g., Ross, Towards a realistic jurisprudence, op. cit., pp. 1113; Olivecrona, Law as Fact, op. cit., p. 77; and, in a more indirect form, Llewellyn, On Reading and Using the Newer Jurisprudence, op. cit., pp. 586589. But see Summers, On Identifying and Reconstructing a General Legal Theory, op. cit., p. 1021. 58 See Bjarup, Legal Realism or Kelsen versus Ha gerstro m, op. cit., pp. 256257; Edward G. White, From Sociological Jurisprudence to Realism: Jurisprudence in Social Change in Early Twentieth-Century America, Virginia Law Review 58 (1972), 9991028, pp. 10131026; and, much more cautiously, Cotterrell, The Politics of Jurisprudence, op. cit., pp. 203206. But see Horwitz, The Transformation of American Law 18701960, op. cit., pp. 219220 as well as Alexander, Comparing the Two Legal Realisms, op. cit., pp. 131133.
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completely and properly (e.g., to be considered as binding by the addressees) requires the inuence of distinctive values coming from the political world. The legal realists have succeeded, at least in their idea of how law and politics relate, in their objective of portraying in contemporary legal theory the reality of law in the welfare state: a reality in which legal and political phenomena present themselves as two intersecting worlds. The realists have succeeded as, in the end, the perception of law as having a partially rigid structure towards the worlds of values and their formation, has found its space both inside legal positivism and among natural law followers.59 This space within legal positivism can be seen in particular in the recognition by Hart and contemporary legal positivism (both in its inclusive and exclusive form) that legal positivism should be characterized not by positing an ontological separation between the law on the one hand, and the world of values on the other, but simply a conceptual separation between the two.60 Conversely, most natural law scholars recognize that while the law, in order to be dened as such, has to embrace and fulll certain goals, lawmaking at times can take its own specic path, deviating from that of fullling the good of community.61 Only a few contemporary legal scholars today claim an independence of law from values and interests or, at the opposite end of the spectrum, the absolute interchangeability of legal and political categories. Contemporary legal theories end up being stretched on a quantitatively and qualitatively broad spectrum of intermediary
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, Michigan Law Review 90 (1992), 23942423, pp. 23942403. See also Duncan Kennedy, Two Globalizations of Law and Legal Thought: 18501968, Suffolk University Law Review 36 (2003), 631679, pp. 678679. 60 See Herbert L. A. Hart, Postscript, in Herbert L. A. Hart, The Concept of Law, 2nd edn. (Oxford: Clarendon Press, 1994), 238276, pp. 240, 255. See also Herbert L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), p. 55; Torben Spaak, Legal Positivism, Laws Normativity, and the Normative Force of Legal Justication, Ratio Juris 16:4 (2003), 469485, p. 473; and Jules Coleman, Rules and Social Facts, Harvard Journal of Law and Public Policy 14 (1991), 703725, pp. 715717. But see Frederick Schauer, Constitutional Positivism, Connecticut Law Review 25 (1993), 797828, pp. 800801. 61 See Finnis, Natural Law and Natural Rights, op. cit., pp. 148149. See also Cotterrell, The Politics of Jurisprudence, op. cit., p. 148.
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positions, in which law is depicted as a mixture of autonomous product (ratio) and political inuences (voluntas).62 Almost all contemporary legal theories have now arrived at the point of sharing the same starting premise highlighted by the theoretical proposals of the American and Scandinavian legal realists. That is to say, in the contemporary age, legal and political phenomena are importantly different, as well as presenting (with greater or lesser degrees of intensity and extent) regions of interaction.63 Perhaps, indeed, when all is said and done, and at least on the issue of the relations between law and politics, we are now all realists. Faculty of Law Stockholm University, 10691, Stockholm, Sweden E-mail: mauro.zamboni@juridicum.su.se

See Cotterrell, Laws Community, op. cit., pp. 277278, 319; and Cotterrell, Why Must Legal Ideas Be Interpreted Sociologically?, Journal of Law and Society 25 (1998), 171192, 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. 975976, 985 986.

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