Legal realism is not a claim about what exists, and lawyers should stop treating it as one

A small irritation from the Lahore High Court bar library, where I spend too many evenings.

Colleagues say "I'm a legal realist" to mean one of three things: that judges decide on their prejudices and then find reasons; that law is ultimately power; or that there is no such thing as the "real" law behind the courts' decisions. These are different claims, and only the first is close to what the American legal realists meant.

Holmes, in "The Path of the Law" (1897), said that by law he meant the prophecies of what the courts will do in fact. The realists who followed in the 1920s and 1930s, Llewellyn and Frank among them, were making a claim about method: if you want to understand law, study what officials actually do, not only what the texts say. It is a programme for legal research, not a thesis about what exists.

Hart's reply in The Concept of Law, in his chapter on formalism and rule-scepticism, is still the best I know. A judge does not predict what she herself will do; she applies rules she takes as binding from the internal point of view. The prediction theory cannot explain the judge.

Then there are the Scandinavian legal realists, Hägerström and Ross among them, whose position is closer to a metaphysical claim: that rights and duties are not real entities but ideas that move people to act. Confusingly, that is a kind of anti-realism about rights, called realism because it claims to describe what is really there.

So "legal realism" names at least two different things, neither of which is realism in the philosopher's usual sense. Before we argue about whether we are realists, we should agree which one we mean.