Book Review of Hanoch Dagan's Reconstructing American Legal Realism & Rethinking Private Law Theory

Abstract

This review of Hanoch Dagan’s Reconstructing American Legal Realism & Rethinking Private Law Theory assesses the book’s central claims that only the American legal realists have identified the truly distinctive character of law; that the distinctive character revealed by the realists amounts to a state of accommodating three irreducible tensions between power and reason, science and craft, and tradition and progress; that only a realist theory of law is capable of portraying a full picture of law in contrast to other theories which distort the picture by latching onto one side of one of these tensions; and that Dagan’s reconstructed realism, displaying structural pluralism with a normative perfectionist edge, provides a theory of law that is both observationally accurate and normatively appealing.

The fuller theoretical position advanced in this book is intended to provide support for Dagan’s recent Property: Values and Institutions. However, pressing the irreducible and irresolvable character of Dagan’s three constitutive tensions leads to the conclusion that Dagan’s structural pluralism and moderate perfectionism (developed in his earlier work on property) have to be regarded as not inherently realist but reliant on their own normative convictions and arguments, and, as such, should be reckoned as one of a number of possible normative complements invited by a realist portrayal of the state of law.

Despite this radical questioning of Dagan’s central claims, it is recognised that his book promotes an agenda for theory that is distinctively legal in engaging with law as it is practised, and introduces the possibility of considering the relationship between descriptive legal theory and normative legal theory in a fresh way.

Keywords: Dagan, American legal realism, private law theory, property