08 May 2013

ARTICLES: Tamanaha on Social Legal Theory and the Rule of Law

Two interesting articles by (the always interesting) Brian Z Tamanaha have recently appeared on SSRN:

The Third Pillar of Jurisprudence: Social Legal Theory

Jurisprudence is generally thought to consist of two main classical rival branches — natural law and legal positivism — followed by a bunch of modern schools — legal realism, law and economics, critical theory, legal pragmatism, etc. In this essay I argue that three main branches of jurisprudence have existed, and battled, for centuries, not two, but the third goes unrecognized as such because it has traveled under different labels and the underlying connections have been clouded by various confusions. The core insights and focus of this third branch, what I call “Social Legal Theory,” trace in a continuous thread from Montesquieu, through historical jurisprudence, sociological jurisprudence, and legal realism, up to the present. This third branch, I argue, provides a contrasting/complementary perspective, in conjunction with natural law and legal positivism, which rounds out the full range of theoretical angles on law: natural law is normative; legal positivism is analytical/conceptual; and social legal theory is empirical. (Among a number of clarifications, I answer the common objection that empirically-grounded theories are not sufficiently theoretical.) The conventional jurisprudential narrative is redrawn in this essay in a way that exposes unseen connections among theoretical schools and brings into focus critical issues about the nature of law that currently are marginalized by natural law and legal positivism.

The History and Elements of the Rule of Law

I have written extensively about the rule of law for two basic reasons. First, the notion of the rule of law is perhaps the most powerful and often repeated political ideal in contemporary global discourse. Everyone, it seems, is for the rule of law. The rule of law is a major source of legitimation for governments in the modern world. A government that abides by the rule of law is seen as good and worthy of respect. In recent decades, billions of dollars have been spent by theWorld Bank and other development agencies on developing the rule of law around the world — with limited success.

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