Ennis McBride has posted Legal Realism and Legal Positivism Are Expressly (Not Just Tacitly) Consistent on SSRN. Here is the abstract:
In a recent article Priel takes issue with Leiter’s claim that Legal Realists are tacit positivists and argues that Leiter misunderstands both Legal Realism and positivism, thereby failing to provide an accurate account of the law. I agree that this dispute goes to central issues in jurisprudence and that it needs to be resolved if we are to make sense of the law. But I argue that while Priel identifies the key issues, he fails to make good his claim that there are irreconcilable differences between the schools of thought, owing to his mischaracterisation of each. I argue that Priel goes wrong partly owing to his respective conflation of three pairs of concepts: (1) rational indeterminacy and causal indeterminacy; (2) determinacy and predictability, and (3) the distinction between legal and nonlegal reasons inside the courtroom and that between law and society outside it. It is impossible to fully understand what either school argued without separating these concepts and it is this that leads Priel to misapprehend the true differences—and similarities—between these two schools. With this muddying of the waters cleared, we can see that any differences between the schools are ones of degree and emphasis rather than conceptual disagreement.
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