The Legal Realists on Political Economy

Dan Priel
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Abstract

Alongside the well-known jurisprudential ideas associated with legal realism, some scholars have highlighted the realists’ political-economic ideas. Best known among them has been Morton Horwitz, who has argued that the realists launched an “attack on the legitimacy of the market.” Other scholars challenged this view and argued that there was no significant connection between legal realism and political economic ideas. I offer a corrective to both views. I first consider the work of five legal realists (Karl Llewellyn, Adolf Berle, William O. Douglas, Jerome Frank, and Thurman Arnold) and show that all held views that were well within the political-economic mainstream of their era, which did not challenge the legitimacy of market capitalism but wanted to see markets better regulated. I also show that for many of these realists, there were important connections between their jurisprudential and political-economic ideas. I then turn to some neglected writings of Felix Cohen to show that he too saw a direct link between his legal and economic ideas. However, unlike the other legal realists discussed here, he was a radical critic of market capitalism. I use his political-economic writings for a reconsideration of his better-known jurisprudential works.
政治经济学的法律现实主义者
除了与法律现实主义相关的众所周知的法理学思想之外,一些学者还强调了现实主义者的政治经济思想。其中最著名的是莫顿-霍维茨(Morton Horwitz),他认为现实主义者发起了 "对市场合法性的攻击"。其他学者则对这一观点提出质疑,认为法律现实主义与政治经济学思想之间并无重要联系。我对这两种观点都进行了纠正。我首先探讨了五位法律现实主义者(卡尔-卢埃林、阿道夫-贝勒、威廉-道格拉斯、杰罗姆-弗兰克和瑟曼-阿诺德)的研究成果,并表明他们所持的观点都完全符合他们所处时代的政治经济学主流,即不挑战市场资本主义的合法性,但希望看到市场得到更好的监管。我还表明,对其中许多现实主义者来说,他们的法学思想与政治经济学思想之间存在着重要的联系。然后,我将从费利克斯-科恩(Felix Cohen)一些被忽视的著作入手,说明他也认为自己的法律思想与经济思想之间存在直接联系。然而,与本文讨论的其他法律现实主义者不同,他是市场资本主义的激进批评者。我利用他的政治经济学著作来重新审视他更为人熟知的法理学作品。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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