Brian Leiter on Legal Realism and Legal Doctrine(Leiter論法唯實論與法律原則)

Brian Leiter在SSRN上面發表一篇文章:Legal Realism and Legal Doctrine,探討法唯實論與法律原則(doctrine)的議題,很有意思。千萬不要錯過!我想Leiter認為法唯實論對於法律原則的立場可以用一開始的一段話做說明:「A judge who decides cases based on the norm “this breach of contract is efficient” still decides based on a normative standard, even if it is not one that the law necessarily endorses. But the non-legal normative standards of yesterday can become the legally binding norms of tomorrow. When the Legal Realists taught us is that too often the doctrine that courts invoke is not really the normative standard upon which they really rely. And it was central to Legal Realism to reform the law to make the actual doctrine cited by courts and treatise writers correspond to the actual normative standards upon which judges rely. Doctrine remains so important today, as many of the contributions to this symposium show, precisely because the realist law reform movement was successful in so many arenas.」強烈推薦閱讀


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