The Jurisprudence of Skepticism

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. Against the skeptics can be arrayed a vast number of natural lawyers, legal conventionalists, and formalists, including Cicero, Coke, Blackstone, and Langdell, not to mention the majority of contemporary lawyers, judges, and law professors. This article will set forth and defend a moderately skeptical approach to law and judging, one not so far-reaching as that of the critical legal studies movement or even of Holmes but distinct from orthodox legal thought or at least its pietistic expressions.