Leiter opens a realist front: 'there is no such thing as real normativity'

Brian Leiter, From a Realist Point of View Oxford University Press, Oxford Legal Philosophy series, 2026, 464 pp.

There is no accident in reviewing this book today.

One of the first places to report the death of Robert Alexy was Leiter's blog. And in legal philosophy Leiter stands directly opposite the position Alexy occupied.

The contrast gives a useful cross-section of where the philosophy of law now stands.

Two poles#

Alexy holds that law necessarily makes a claim to correctness. The legitimacy of a decision lies in its rational justification. The judge is obliged to weigh principles, and that weighing has a structure open to review.

Leiter holds that appellate judges mostly decide as they do not because the rules of law mechanically determine the outcome but because of psychological, ideological and social factors. And the business of legal philosophy is to explain those factors.

The name of Leiter's position is legal realism — the American Legal Realist tradition in particular.

What naturalism means#

Leiter's methodological thesis is the spine of the book.

Legal philosophy, on his account, should not sit in an armchair generating conceptual intuitions about “the nature of law”. It should explain law by the same scientific methods that explain other aspects of human behaviour.

That opens a front at once. Among the book's chief targets, as the NDPR review notes, are Waldron, Dworkin, Rawls, Raz and Finnis — which is to say the mainstream of analytic legal philosophy.

Leiter's criticism can be put in a sentence: legal philosophy went far too long without caring what courts actually do.

Three strong chapters#

Precedent (stare decisis). Leiter argues that precedent binds a judge far less tightly than is supposed. For it is the judge, again, who decides which similarity counts as legally relevant. Precedent does not produce results mechanically; it works through a contestable act of interpretation. It is therefore not a rule but an indeterminate resource for argument.

Courts and democracy. Most theories of judicial review rest on idealised assumptions about the competence of judges and the workings of institutions. The realist view begins not from abstract principles but from institutions that are historically situated, flawed and cognitively limited.

The misreading of Hart. On Leiter's account, Hart misrepresented the realists as people who denied that there are legal rules. The realists were not denying the existence of rules; they were trying to explain how courts decide in practice. Leiter goes further: Hart's positivism is not the opposite of realism but its continuation.

The boundary problem#

One of the boldest chapters attacks the classical question of legal philosophy: what are the essential properties that distinguish law from morality?

Leiter's answer is that the question is badly posed.

Law, like other human-made institutions, has no fixed and necessary defining properties. The search for an “essence” repeats a programme that has already collapsed in the philosophy of science: no sharp line can be drawn between science and non-science, and none can be drawn between law and morality either.

Given that Alexy's entire project was to fix precisely that boundary — the threshold of intolerable injustice — the opposition comes into focus.

The reviewer's objection#

Reviewing the book in Notre Dame Philosophical Reviews, Adrian Kreutz (University of Amsterdam) calls it the “most consistent and most finely worked” statement of the realist tradition.

But he raises a serious objection.

Leiter says in so many words that “there is no such thing as real normativity”. Not only in morality: there is, he argues, no objective right and wrong even about what one ought to believe.

Kreutz's question follows. By what criterion, then, does Leiter identify distortion in judicial reasoning?

To say that a decision is “ideologically corrupted” or “a justification invented after the fact” is to presuppose a standard. The standard need not be moral — but it is epistemically normative.

Kreutz's proposal is that Leiter's realism could be completed by a dimension of epistemic normativity without lapsing into moralism. That would not weaken the project; it would strengthen it.

The Nietzsche connection#

There is a strand in the book that is little discussed but decisive: Nietzsche.

Leiter is also a scholar of Nietzsche, and he ties his realism openly to a Nietzschean genealogical posture: look not at the reasons given for a thought but at its source; make visible the relations of power behind moral language.

It is the method we followed in our file on the Genealogy of Morality this week, applied to law.

And the sharpest point of Kreutz's objection lies just here. A Nietzschean realism does not merely identify causes; it exposes forms of reasoning as self-deceiving and ideologically corrupted. And that is to make an evaluation.

Seen from Turkey#

This is an argument with a direct counterpart in Turkey.

There are two ways to assess a court's decision.

The first: is the reasoning coherent? Have the norms been correctly applied? Has the proportionality test been carried out?

The second: under what conditions, under what institutional pressure and with what leanings was this decision reached?

Alexy is the theorist of the first road, Leiter of the second.

And the truth is that no judicial system can be understood unless both questions are asked together.

The Scott Shapiro file we ran this week is looking for a third way between those two poles.

Who is it for?#

Not an introductory book. It is for those working in legal philosophy, political philosophy and metaethics.

But it is also a valuable counterweight for graduate students in Turkey who want to hear a voice from outside the Kelsen-Hart-Alexy axis that governs the law faculties there.

It is expensive: 170 dollars in hardback. One for the library order list.