NARRATOR: Thanks for joining this episode of the No. 86 lecture series, where we discuss classical and modern Jurisprudence. Today’s episode features Eric Claeys, Professor of Law at Antonin Scalia Law School at George Mason University. In his scholarship, he studies theories of natural law and natural rights and their implications in property law. Professor Claeys’s main teaching interests include Property, Torts, Jurisprudence, and Intellectual Property. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Natural Law was the only jurisprudence for hundreds of years, then there was suddenly a proliferation of other ways of thinking about law. Professor Claeys, you’ve discussed a couple of these alternatives in other episodes. Are there still other more recent jurisprudence theories? ERIC CLAEYS: We've been talking a lot about natural law, positivism, and a couple of other non positivist approaches like Dworkin's. Those alternatives are not the only alternatives, and when studying different theories of law there are other theories that are skeptical that law is a phenomenon that can be defined in a really stable and satisfying way. And the most influential of those approaches is in the US legal scholarship and US legal thought is American legal realism. American legal realism is kind of hard to pin down to any few core tenants. In some ways, maybe it's more of a disposition or an attitude than it is a set of principles. I guess one way to talk about is what it's not, the phrase realism is a soundbite, or it's an antithesis. It's an alternative to formalism. And so in the realist narrative, American lawyers in the late 19th century assumed that a careful lawyer could study a series of sources and figure out what they said no matter where you started, and that law could be studied by looking at sources without consulting anything outside those sources, and that every source ended up leading to a rule. Realists thought that law was not only formed; there was some realistic assessment of choices that needed to be made by policy makers. I'd say American legal realists shared a lot of the same interests and a lot of the same motivations as Bentham had. The realist thought that there was too much law that was assumed to be background that could not change, and the American legal realist assumed that the way the economy in the US and politics were changing the early 20th century; a lot of laws needed to change to catch up with the changes that were happening in the economy and in the country. And they thought that the law as it had been seen by the formalists was too brittle, and it was not up to the job of keeping up to the times. Realists doubted that if you took three lawyers who are all reasonable lawyers, and asked them to read the same sources, they'd come out with the same answers. Realists tended to suspect that there's a lot of judgment that needs to be exercised by the lawyer, and it was more often the case that if there was one source, three lawyers would see the source three different ways. Three different lawyers would then rely on background judgments and opinions about good policy to infuse how they looked at the law, and those those applied judgements would then lead them to see the same source in different directions. Legal realism's funny to talk about because most academics and sophisticated lawyers would say: yeah, we're all realist now. . But then if you ask them all, what does realism require in a particular set of issues, this is the kind of topic where you're going to get different opinions from different people. I'd say a realist approach starts with what legal sources say, and then says: what do these sources require and what discretion do they leave open? And a realist is prepared to believe that a source closes a few doors and leaves many, many more doors open. A realist then thinks that to choose which of those doors to go through, to choose how to take an under determined legal source and give it more determinacy; one needs to identify all the relevant policies that come to bear on the practical problem, and then figure out what good policy requires within the limits of what the law allows. And I guess last then, other things being equal, a realist wants to make a prescription about what the law requires, making a judgment that's particular to one set of circumstances. Realists like to think that legal rules ought to be made one case at a time. Legal realists tend to resist the idea that you can make a a statute, or you can make a common law rule that settles broad classes of cases with very, very few exceptions. PUBLIUS: It sounds like legal realism would be difficult to work with in a lot of cases. Why is it a compelling theory? Is there a clear alternative to this approach? ERIC CLAEYS: Realism is attractive because it emphasizes that law is not ever fully determined; that legal sources have black areas or white areas, but they leave shades of gray and in a lot of tough issues, the lawyers are operating in the gray. And Realism is also attractive just because it provides a way of thinking about things in which you figure out what the law requires to happen or not to happen, and then it identifies the realm of discretion. And a realist perspective then lets the lawyer operate in the realm of discretion. And it also is attractive because it encourages the lawyer to consult policy to figure out how to exercise the discretion in a way that's going to contribute as well as possible to the community as a whole. And then I guess finally, realism is attractive because it lets people make decisions that are particular without making decisions that have long effects. The danger, the downside, to that is sometimes legal ordering works best by having a clear rule and everybody just takes for granted the rule exists, and ways of thinking that a realist might trivialize, or play down the possibility that a really clear exceptionist rule [00:05:00] does more good to order behavior than a series of one off decisions made one at a time. Legal realism is kind of taken as an organizing framework; it leads to methods of decision that are averse to Bright Line rules and much more reliant on case specific examples. So on the Supreme Court over the last 30 years, one really clear distinction would be between cases decided by Justice Scalia on one side, and Justice Breyer on the other. Justice Scalia was a formalist. Uh, he wrote an article called The Rule of Law as a Law of Rules. He liked rules that applied all the time. And without exception, Justice Breyer is much more likely to say that some norm; it creates a presumption for policy in a certain set of situations, but we can look at this case and see if this is a case where an exception is appropriate. And then we're considering about this, Justice Breyer's quick to think to want to look at three to six to seven different particular policy factors that might apply in context. So for him, a rule is never really a rule, it's a presumptive judgement that can then be limited by three to seven policy factors. Realist approaches have two main advantages: they're flexible and they provide a way for judges and other legal actors to make decisions that they think are very sensitive to context. The danger of a realist approach is that a realist approach underestimates the number of times or the possibility that sometimes a legal system needs a very clear rule and people need to order their affairs around a clear rule.To the extent that legal realism has light to shed on jurisprudence; it's a few doubts that legal rules have that much content. The realists also tend to assume that law is a tool that people can use to realize certain outcomes they find valuable. When a judge or regulator has this disposition, he's more likely to do some things that a more formalist lawyer would not do. Someone who's more formalist, when reading a statute, would say: what does the statute require me to do? Someone who's more realist is more likely to say: what are the questions this statute does not settle, what are the choices still left open to me? A formalist is more likely to say: a statute or another legal rule is meant to accomplish a couple of goals of policy that someone else worked out, and I'm worried that if I go outside the forms, I'm going to reopen some of the problems that whoever wrote this was trying to stop. A realist is more likely to say: any rule of law, any statute; it's meant to accomplish certain goals but any rule of law might apply in a situation that's a new situation, or it might apply in a situation where there are a lot of policies in place besides the one that the rule is originally designed to. And somebody needs to be at the point of contact between a bunch of different legal rules, or someone needs to be in the zone where there's lots of discretion and figure out what to do with the discretion that's left. And someone who's more formalist is more likely to assume that rules apply relatively consistently and even if they're going to be grounds for exceptions, the grounds are narrow. Realists are gonna assume that the justifications for rules only justify them weakly, and they're likely to be lots of exceptional circumstances that justify limiting a rule in applying an exception designed for a particular set of circumstances. PUBLIUS: What are some of the other theories that have evolved from legal realism? Are Critical Legal Studies a form of realist theory? ERIC CLAEYS: Legal realism is a view that contributed heavily to the rise of law and economics. Economists agree with legal realists that rules are under determined, and that legal actors consult intuitions about policy when they make rules; law and economists then consult ideas about efficiency to provide prescriptions about what law ought to be. Legal realism is also a factor contributing to making respectable critical legal theory. Critical legal theory is a view whereby law is under determined, and when law is not fully determined; control groups then will take advantage of their control position to impose or to make the law do certain things. And people in control groups will tend to establish results that favor members of the control groups; they will set up results that give status to people in the control groups and subordinate people who are not in the control groups. Critical legal theorists want to study the ways in which law is under determined, they want to bring out the ways in which less than determined legal systems let control groups put themselves in the driver's seat and keep other people outside the driver's seat; and then propose ways to give protection, to give equality to the people who are on the outs. Critical legal studies has a common interest, and then the interest is applied to a lot of different fields of study. Critical legal studies critiques law, accepting that law is an instrument for people in control to keep themselves in power, to elevate their power ,and to exclude other people, or to subordinate other people, who are not in the control group. And then there are different movements of critical legal studies, and they study the relations between different in groups and different out groups. So you can have critical studies in sexuality looking at the way men might be in charge and women not; or heterosexuals in charge, homosexuals not. Or you can then have critical race theories focusing on the way caucasian whites are in charge, and different non-white groups are subordinated by laws and legal institutions. And in each case, the critical legal theorist wants to know what the law is, suspects that the law is under determined, and suspects that a control group is using influence and control over the law to fill in the under determined parts to favor the control group. And the theorist wants to show the ways in which people outside are subordinated by, or hurt by the application of law to the benefit of the control group; and the theorist wants to propose ways to reform the law to equalize relations between the people in the control group and the people outside. Critical legal theory is a radical movement, and it's always hard with a radical movement to say whether it's its own distinct school in the debate or it's outside the debate entirely. I think critical legal studies makes a concrete claim about law, like law consists of forms, the forms are typically under determined, and the under determined parts are filled in, and those make claims about law that could be compared as against positivist claims about law, Dworkinian claims, and natural law claims. Though they're different, critical legal theory could be portrayed as a movement that rejects the premises of most debates about jurisprudence too. There, the argument would be law is so under determined that there's not enough there that you can say there's a distinct phenomenon that's worth talking about. Law doesn't exist anymore or less than unicorns do. A group of people might think that there are unicorns and organize their social practices around there being unicorns, but they're deluded and we're the only people that can see the delusion. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series on Jurisprudence. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! TRANSCRIPT - VERBATIM FOR YOUTUBE Thanks for joining this episode of the No. 86 lecture series, where we discuss classical and modern Jurisprudence. Today’s episode features Eric Claeys, Professor of Law at Antonin Scalia Law School at George Mason University. In his scholarship, he studies theories of natural law and natural rights and their implications in property law. Professor Claeys’s main teaching interests include Property, Torts, Jurisprudence, and Intellectual Property. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. Natural Law was the only jurisprudence for hundreds of years, then there was suddenly a proliferation of other ways of thinking about law. Professor Claeys, you’ve discussed a couple of these alternatives in other episodes. Are there still other more recent jurisprudence theories? We've been talking a lot about natural law, positivism, and a couple of other non positivist approaches like Dworkin's. Those alternatives are not the only alternatives, and when studying different theories of law there are other theories that are skeptical that law is a phenomenon that can be defined in a really stable and satisfying way. And the most influential of those approaches is in the US legal scholarship and US legal thought is American legal realism. American legal realism is kind of hard to pin down to any few core tenants. In some ways, maybe it's more of a disposition or an attitude than it is a set of principles. I guess one way to talk about is what its not, the phrase realism is a soundbite, or it's an antithesis. It's an alternative to formalism. And so in the realist narrative, American lawyers in the late 19th century assumed that a careful lawyer could study a series of sources and figure out what they said no matter where you started, and that law could be studied by looking at sources without consulting anything outside those sources, and that every source ended up leading to a rule. Realists thought that law was not only formed; there was some realistic assessment of choices that needed to be made by policy makers. I'd say American legal realists shared a lot of the same interests and a lot of the same motivations as Bentham had. The realist thought that there was too much law that was assumed to be background that could not change, and the American legal realist assumed that the way the economy in the US and politics were changing the early 20th century; a lot of laws needed to change to catch up with the changes that were happening in the economy and in the country. And they thought that the law as it had been seen by the formalists was too brittle, and it was not up to the job of keeping up to the times. Realists doubted that if you took three lawyers who are all reasonable lawyers, and asked them to read the same sources, they'd come out with the same answers. Realists tended to suspect that there's a lot of judgment that needs to be exercised by the lawyer, and it was more often the case that if there was one source, three lawyers would see the source three different ways. Three different lawyers would then rely on background judgments and opinions about good policy to infuse how they looked at the law, and those those applied judgements would then lead them to see the same source in different directions. Legal realism's funny to talk about because most academics and sophisticated lawyers would say: yeah, we're all realist now. . But then if you ask them all, what does realism require in a particular set of issues, this is the kind of topic where you're going to get different opinions from different people. I'd say a realist approach starts with what legal sources say, and then says: what do these sources require and what discretion do they leave open? And a realist is prepared to believe that a source closes a few doors and leaves many, many more doors open. A realist then thinks that to choose which of those doors to go through, to choose how to take an under determined legal source and give it more determinacy; one needs to identify all the relevant policies that come to bear on the practical problem, and then figure out what good policy requires within the limits of what the law allows. And I guess last then, other things being equal, a realist wants to make a prescription about what the law requires, making a judgment that's particular to one set of circumstances. Realists like to think that legal rules ought to be made one case at a time. Legal realists tend to resist the idea that you can make a a statute, or you can make a common law rule that settles broad classes of cases with very, very few exceptions. It sounds like legal realism would be difficult to work with in a lot of cases. Why is it a compelling theory? Is there a clear alternative to this approach? Realism is attractive because it emphasizes that law is not ever fully determined; that legal sources have black areas or white areas, but they leave shades of gray and in a lot of tough issues, the lawyers are operating in the gray. And Realism is also attractive just because it provides a way of thinking about things in which you figure out what the law requires to happen or not to happen, and then it identifies the realm of discretion. And a realist perspective then lets the lawyer operate in the realm of discretion. And it also is attractive because it encourages the lawyer to consult policy to figure out how to exercise the discretion in a way that's going to contribute as well as possible to the community as a whole. And then I guess finally, realism is attractive because it lets people make decisions that are particular without making decisions that have long effects. The danger, the downside, to that is sometimes legal ordering works best by having a clear rule and everybody just takes for granted the rule exists, and ways of thinking that a realist might trivialize, or play down the possibility that a really clear exceptionist rule [00:05:00] does more good to order behavior than a series of one off decisions made one at a time. Legal realism is kind of taken as an organizing framework; it leads to methods of decision that are averse to Bright Line rules and much more reliant on case specific examples. So on the Supreme Court over the last 30 years, one really clear distinction would be between cases decided by Justice Scalia on one side, and Justice Breyer on the other. Justice Scalia was a formalist. Uh, he wrote an article called The Rule of Law as a Law of Rules. He liked rules that applied all the time. And without exception, Justice Breyer is much more likely to say that some norm; it creates a presumption for policy in a certain set of situations, but we can look at this case and see if this is a case where an exception is appropriate. And then we're considering about this, Justice Breyer's quick to think to want to look at three to six to seven different particular policy factors that might apply in context. So for him, a rule is never really a rule, it's a presumptive judgement that can then be limited by three to seven policy factors. Realist approaches have two main advantages: they're flexible and they provide a way for judges and other legal actors to make decisions that they think are very sensitive to context. The danger of a realist approach is that a realist approach underestimates the number of times or the possibility that sometimes a legal system needs a very clear rule and people need to order their affairs around a clear rule.To the extent that legal realism has light to shed on jurisprudence; it's a few doubts that legal rules have that much content. The realists also tend to assume that law is a tool that people can use to realize certain outcomes they find valuable. When a judge or regulator has this disposition, he's more likely to do some things that a more formalist lawyer would not do. Someone who's more formalist, when reading a statute, would say: what does the statute require me to do? Someone who's more realist is more likely to say: what are the questions this statute does not settle, what are the choices still left open to me? A formalist is more likely to say: a statute or another legal rule is meant to accomplish a couple of goals of policy that someone else worked out, and I'm worried that if I go outside the forms, I'm going to reopen some of the problems that whoever wrote this was trying to stop. A realist is more likely to say: any rule of law, any statute; it's meant to accomplish certain goals but any rule of law might apply in a situation that's a new situation, or it might apply in a situation where there are a lot of policies in place besides the one that the rule is originally designed to. And somebody needs to be at the point of contact between a bunch of different legal rules, or someone needs to be in the zone where there's lots of discretion and figure out what to do with the discretion that's left. And someone who's more formalist is more likely to assume that rules apply relatively consistently and even if they're going to be grounds for exceptions, the grounds are narrow. Realists are gonna assume that the justifications for rules only justify them weakly, and they're likely to be lots of exceptional circumstances that justify limiting a rule in applying an exception designed for a particular set of circumstances. What are some of the other theories that have evolved from legal realism? Are Critical Legal Studies a form of realist theory? Legal realism is a view that contributed heavily to the rise of law and economics. Economists agree with legal realists that rules are under determined, and that legal actors consult intuitions about policy when they make rules; law and economists then consult ideas about efficiency to provide prescriptions about what law ought to be. Legal realism is also a factor contributing to making respectable critical legal theory. Critical legal theory is a view whereby law is under determined, and when law is not fully determined; control groups then will take advantage of their control position to impose or to make the law do certain things. And people in control groups will tend to establish results that favor members of the control groups; they will set up results that give status to people in the control groups and subordinate people who are not in the control groups. Critical legal theorists want to study the ways in which law is under determined, they want to bring out the ways in which less than determined legal systems let control groups put themselves in the driver's seat and keep other people outside the driver's seat; and then propose ways to give protection, to give equality to the people who are on the outs. Critical legal studies has a common interest, and then the interest is applied to a lot of different fields of study. Critical legal studies critiques law, accepting that law is an instrument for people in control to keep themselves in power, to elevate their power ,and to exclude other people, or to subordinate other people, who are not in the control group. And then there are different movements of critical legal studies, and they study the relations between different in groups and different out groups. So you can have critical studies in sexuality looking at the way men might be in charge and women not; or heterosexuals in charge, homosexuals not. Or you can then have critical race theories focusing on the way caucasian whites are in charge, and different non-white groups are subordinated by laws and legal institutions. And in each case, the critical legal theorist wants to know what the law is, suspects that the law is under determined, and suspects that a control group is using influence and control over the law to fill in the under determined parts to favor the control group. And the theorist wants to show the ways in which people outside are subordinated by, or hurt by the application of law to the benefit of the control group; and the theorist wants to propose ways to reform the law to equalize relations between the people in the control group and the people outside. Critical legal theory is a radical movement, and it's always hard with a radical movement to say whether it's its own distinct school in the debate or it's outside the debate entirely. I think critical legal studies makes a concrete claim about law, like law consists of forms, the forms are typically under determined, and the under determined parts are filled in, and those make claims about law that could be compared as against positivist claims about law, Dworkinian claims, and natural law claims. Though they're different, critical legal theory could be portrayed as a movement that rejects the premises of most debates about jurisprudence too. There, the argument would be law is so under determined that there's not enough there that you can say there's a distinct phenomenon that's worth talking about. Law doesn't exist anymore or less than unicorns do. A group of people might think that there are unicorns and organize their social practices around there being unicorns, but they're deluded and we're the only people that can see the delusion. Thank you for listening to this episode of the No. 86 Lecture series on Jurisprudence. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!