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Scepticism in law


Scepticism in law is a branch of jurisprudence that was a reaction against the idea of natural law, but also a response to the 'formalism' of legal positivists. Legal scepticism is sometimes known as legal realism.

According to Richard Posner, "The skeptical vein in American thinking about law runs from Holmes to the legal realists to the critical legal studies movement, while behind Holmes stretches a European skeptical legal tradition that runs from Thrasymachus (in Plato's Republic) to Hobbes and Bentham and beyond".

...men make their own laws; that these laws do not flow from some mysterious omnipresence in the sky, and that judges are not independent mouthpieces of the infinite.The common law is not a brooding omnipresence in the sky

Scepticism is a philosophical approach that adopts a scientific method and rejects unevidenced claims to certainty. Scepticism has been known in various degrees. Pyrrho was the first philosopher who developed it to a high degree. Greek Sophist were also sceptics. Protagoras was a famous Greek Sophist. It is interesting to note that Greek Sophists were also law teachers.

Writing about the courts of Athenian democracy, Bertrand Russell states: "In general, there were "a large number of judges to hear each case. The plaintiff and defendant, or prosecutor and accused, appeared in person, not through professional lawyers. Naturally, success or failure depended largely on oratorical skill in appealing to popular prejudices. Although a man had to deliver his own speech, he could hire an expert to write a speech for him, or, as many preferred, he could pay for instruction in the arts required for success in the law courts. These arts the Sophists were supposed to teach".

Stumpf writes about Sophists as, "It was their skepticism and relativism that made them suspect. No one would have criticized them for training lawyers, as they did, to be able to argue either side of a case" Philosophy, History & Problems, p. 30. American legal sceptics are influenced by 'pragmatism' of William James, Dr. John Dewey, and F.e.S. Schiller.


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