Two Catholic bloggers/writers of rather different ideological temperaments — Elizabeth Stoker Bruenig (ESB) and Pascal-Emmanuel Gobry (PEG) — got into an interesting, but somewhat strange, back-and-forth last week over the proper Christian conception of property rights. (You can find a brief summary here.) I call it strange because the term “legal realism” was thrown around to mean something other than what “legal realism” has, conceptually speaking, meant for nearly a century. According to ESB, legal realism — or Christian legal realism or Augustinian legal realism or whatever — , when applied to property at least, is the view that rights are conventional and can be rearranged across time and location. Or, as PEG summarizes, legal realism, according to ESB, “is merely a descriptive theory, not a prescriptive one, and that all it does is note that different property arrangements exist at different times.” But that’s hardly a novel insight. The opening paragraphs of Gaius’ Institutes, where the great Roman jurist distinguishes the civil law from what he calls the law of nations, is predicated on the rather banal observation that different polities have different laws, though Gaius certainly believed that there were laws — the law of nations — which were universally held valid. If anything, a descriptive account of different legal rules — or that there are different legal rules — today falls under the umbrella of legal positivism. The question which legal theorists of different stripes have wrestled with for centuries is not whether legal rules are different, but whether they are right. Even when legal positivists claim to engaged in a purely descriptive enterprise, there is a not-so-subtle normative claim embedded in their thinking that the validity/invalidity of a particular legal rule or system cannot be properly adjudicated. As men embrace and discard different conceptions of justice, different legal orders will emerge. So what then is legal realism?