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JURISPRUDENCE

JURISPRUDENCE

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Tamanaha Tamanaha Document Transcript

  • Page1 LAW 511 - JURISPRUDENCE II FACULTY OF LAW UNIVERSITI TEKNOLOGI MARA SOCIOLOGICAL SCHOOL Brian Tamanaha’s Realistic Socio-Legal Theory M.D.A. Freeman, Lloyd’s Introduction To Jurisprudence at pp. 687-691 The realistic socio-legal theory was a new form of sociological jurisprudence which was proclaimed in the late 1990s. Tamanaha’s book entitled Realistic Socio-Legal: Pragmatism and A social Theory of Law (1997) identifies and develops foundations for social scientific study of law. His approach undertook philosophical pragmatism in order to establish an epistemological foundation which specifies the nature of social science and its knowledge claims, and a methodological foundation which uses both behaviourism and interpretivism. His dislike of the critical legal studies movement led him to place his work in contrasts with that of the critical legal studies movement. He was of the belief that legal theory and socio-legal studies have a lot to learn from one another. However, Tamanaha was insistent that law should be subject to investigation and proof and should not be defined in ways that assume sociological connections. His objections to standard conceptual jurisprudence can be seen in the following: “What law is and what law does cannot be captured in any single scientific concept. The project to devise a scientific concept of law was based upon a misguided belief that law comprises a fundamental category. To the contrary law is thoroughly a cultural construct, lacking any universal essential nature. Law is whatever we attach the label law to.” He denies that there is a concept of law. He says that we only theorize about the concept of law ‘because law is a key social phenomenon that must be understood, analysed and discussed, which could not begin nor be carried far without conceptual analysis’.
  • Page2 Law is a concept applied to so many different phenomena eg. natural law, international law, primitive law, religious law, customary law, state law, folk law etc. Implicitly, Tamanaha accepts and supports the idea of a concept of law. However, according to him there is not a “central case of law”. He cites the example of international law which has its own integrity and has been functioning as a form of law for at least two centuries but which remains under traditional conceptual analysis a “borderline form of law”. The central case approach to the concept of law was the product of the ascendancy of state law that accompanied the rise of the state. According to Tamanaha, his approach is better able to account for the proliferation of different kinds of law than the traditional monotypical view of the concept of law. How is one to evaluate that one concept of law is better than another? Tamanaha’s evaluative criteria: First the concept must be coherent, or ..analytically sound. In other words it should not contain internal contrdictions... Second, the concept must be consistent with, or ‘fit’, or be adequate to, the reality, phenomenon, or idea it purports to represent, describe, or define... Third, the concept must have a use value in the sense that it will enhance our understanding or help us achieve our objectives. As far as criteria of usefulness are concerned, Tamanaha insists this cannot be answered in abstract or general terms: it is the function of the particular activity at hand. Where the activity is the social scientific study of legal phenomena the criteria include: 1) Whether the information is reliable and fits the fcat of the matter about legal phenomena (i.e. do judges in fact treat people differently because of race?); 2) Whether it fits within a meaningful framework of interesting questions about law...for the community of socio-legal investigators: and 3) Whether it enhances our ability to observe, understand, explain, describe, analyse, prescribe, critique and change legal practices to serve our interests, to make law better. What those interests might be, what it means to make law “better”., cannot
  • Page3 be determined by pragmatism itself. That determination must be made in the social arena by social actors as a matter of substantive policy choices. According to Tamanaha, conceptual jurisprudence cannot have autonomy over empirical reality. One of the overriding objectives of Tamanaha’s theory is to “bring into legal theory an infusion of insights from the social scientific study of law.” Socio-legal theory is a practice of theorizing about law that incorporates aspects of both (conceptual and socio-legal) approaches to legal phenomena. Sociological inquiries into “the practices that legal theories purport to analyse and explain (and describe and prescribe) are essential to the enterprise of legal theory, or at least to a legal theory that wants to be good at what it does”. Legal theory, however, can neither be “subsumed within” nor “dictated to” by legal sociology. Law is seen as a social practice amenable to social scientific study, and that legal theory and socio-legal theory have a lot to learn from each other.