New Legal Realism, Empiricism, and Scientism: The Relative Objectivity of Law and Social Science

In this article, I suggest that one of the central characteristics of New Legal Realism is the productive tension between empiricist and pragmatist theories of knowledge which lies at its core. On one side, new realist work in its empiricist posture seeks to use empirical knowledge of the world as the basis on which to design, interpret, apply, and criticize the law. On the other, in its pragmatist moments, it explicitly draws attention to the social and political contingency of any claims to empirical knowledge of the world, including its own. As a consequence, it is distinctive of much scholarship in the New Legal Realist vein that it continually enacts creative syntheses of different philosophies of truth in an attempt to be, in Shaffer's words, ‘positivist . . . interpretivist, and legal realist all at once’. The first part of this article draws on existing historical accounts of legal realism briefly to trace the problematic and ambiguous place of scientism in the legal realist tradition. Then, in the second and more important part of the article, I argue that the ambivalence of the legal realists’ vision has left us, in certain contexts, with a complicated form of mixed legal-scientific governance which has proved remarkably and surprisingly resilient in the face of late twentieth century critiques of scientific objectivity. This may be one of the most enduring legacies of the ‘old’ legal realists for those today who work in the New Legal Realist vein.