My thanks to Adrian Kreutz (Amsterdam) for this friendly review of my latest book, about which he writes:

Leiter’s new volume…is both a fantastic foray into, and recapitulation of, the many forms realism has taken in philosophy and jurisprudence. It builds on the American tradition, but goes beyond that—or, in any case, presents perhaps the most coherently and intricately worked-out manifestation of this very tradition

Kreutz, as part of the “Amsterdam School” of political realism (i.e., Rossi and progeny, as it were), unsurprisingly wants to find a place for epistemic normativity in the realist project. (I say a bit about Rossi’s views in the new Chapter 1 of the volume [I’m much more sympathetic to his views, than the tepid, moralizing version of political realism in Bernard Williams], although Kreutz does not discuss that–NDPR has fairly firm word limits on reviews, so that’s understandable.) But this does lead him to one significant misunderstanding of the realist analysis of legal reasoning. Kreutz writes:

It seems to me, nevertheless, that there is a normative demand latent in that description [of legal reasoning offered by legal realism]. Leiter’s diagnosis of judicial bias, ideological distortion, and the broader sociological pathologies shaping legal reasoning are asking for a form of normative assessment that his present framework refuses to accommodate….

Leiter’s diagnosis of distorted legal reasoning, which is a hallmark of the realist view, appears difficult to separate from the evaluative standpoint from which such distortions are identified and criticised.

This, alas, misunderstands the legal realist project: realists do not show that legal reasoning is “distorted” or that judges suffer from “bias”: it shows that legal reasoning, at least in some range of cases (e.g., appellate cases), necessarily fails to justify a unique legal decision, and therefore the gap must be filled by judges relying on non-legal norms. This is not a “distortion” of legal reasoning, this is just how legal reasoning really and unavoidably works.

One might draw normative conclusions from this: as I suggest in some chapters, one might think the necessity of higher appellate courts relying on non-legal norms to reach decisions means that more attention should be given to the moral and political views of judges when appointing them. But one conclusion a legal realist would never draw is that legal reasoning is “distorted”: it would only be distorted if, in fact, legal reasoning could be determinate, but the realist descriptive thesis (which, by the way, H.L.A. Hart and Hans Kelsen share) is that that is impossible.