Scepticism is not a flourishing stance in contemporary jurisprudence. Hart’s criticism
of “rule-scepticism” in the seventh chapter of The Concept of Law, and the
“middle path” about adjudication, the path of “vigil orthodoxy”, he and fellow theorists
vindicated, since the 1960s, in between the “nightmare” of (extreme) realism
and formalism’s “noble dream”, still hold sway in legal theory, Common Law and
Civil Law alike.1 As a consequence, scepticism stands to many jurisprudes for picturesque
bad view: an exaggeration from a by-gone province of learning, still unreasonably
endorsed by a handful of nostalgic casts of mind.
This is unfortunate. Influential criticisms notwithstanding, scepticism (and its
embedding outlook, realism) represents the good theory in town. A few terminological
clarifications are worth the making, if only to prevent misunderstandings.
The expression “(legal) scepticism” is sometimes used as interchangeable with
“(legal) realism” in jurisprudential discourse. This is misleading. To put it bluntly,
realist theories of law—namely, as I understand them, hard-boiled empiricist and
analytical legal theories—qualify as “sceptical” in the eye of friends and foes, for,
in the criticism they rise against “formalism”, “conceptualism” and, generally, any
sort of naïf or pretended “objectivism” and “cognitivism” concerning law, they cast
the light of doubt upon those rosy views, making appeal to the tribunal of facts.