Legal realists hold that questions about what the law is are best answered with predictions about how judges will rule.
We talked about their reasons for thinking this as well as some apparent objections.
One class of objection concerned apparent gaps between what the law is and what judges say. These are apparent when judges reverse old decisions. When they explain their reasons for reversing the old decision, they don’t say “we’re saying something else and that’s that.” Instead, they say that they now understand the law correctly, whereas the old decisions were mistaken.
Now, it may very well be the case that this is misleading, as Kelly sometimes suggested. It may also be the case that most people are not really concerned with “what the law is” even in this sense: they care about what will be enforced more than any subtle legal reasoning. Even so, legal realism appears to be an awkward description of what we think of as the law. Perhaps what some of these defenses show is that most of us don’t care much about what the law is more than that the realists were right about the nature of law.
Another class of objection took aim at their reasons for holding their view. I said that I thought they exaggerated the extent to which statutes and other sources of law are indeterminate without a judge’s decision. Most of the law is fairly clear cut and people trying to figure out what the law is don’t have to worry much about judges and what they would say.