Introduction : a realistic perspective -- The third branch of jurisprudence -- What is law? -- Necessary and universal truths about law? -- A genealogical view of law -- Law in the age of organizations -- What is international law? -- Conclusion : a realistic theory of law.

This book brings together contributions from academics and practitioners to explore the implications of legal pluralism for legal development.

Throughout the medieval period law was seen as the product of social groups and associations that formed legal orders, as Max Weber elaborates, "either constituted in its membership by such objective characteristics of birth, political, ethnic, or religious denomination, mode of life or occupation, or arose through the process of explicit fraternization." During the second half of the Middle Ages, roughly the tenth through fifteenth centuries, there were "several distinct types of law, sometimes competing, occasionally overlapping, invariably invoking different traditions, (...) jurisdictions and modes of operation." Types of law included imperial and royal edicts and statutes, canon law, unwritten customary law of tribes and localities, written Germanic law, residual Roman law, municipal statutes, the law of merchants and of guilds, and in England the common law, on the continent the Roman law of jurists after the twelfth century revival of the Justinian Code. The types of courts included various imperial and royal courts, ecclesiastical courts, manorial or seigniorial courts, village courts, municipal courts in cities, merchant courts, and guild courts. Serving as judges in these courts, respectively, were kings or their appointees, Bishops and abbots, barons or lords of the manor or their appointees, local lay leaders, leading burghers, merchants, and members of the guild. These various positions were not wholly separate-many high government officials were in religious orders, while Churches held landed estates that came with local judicial responsibilities. "Bishops, abbots and prioresses, as lords of temporal possessions, controlled manorial or honorial courts at which they sometimes, though not generally, presided in person, exercising responsibility for criminal and customary law." "The result was the existence of numerous law communities," Weber wrote, "the autonomous jurisdictions of which overlapped, the compulsory, political association being only one such autonomous jurisdiction in so far as it existed at all." Jurisdictional rules for judicial tribunals and the laws to be applied related to the persons involved and the subject matter at issue. The personality principle linked law to a person's community or association, and under feudalism property ownership came wrapped together with the right to judge those tied to the property. "Demarcation disputes between these laws and courts were numerous." Jurisdictional conflicts arose especially in relation to ecclesiastical courts, which claimed broad jurisdiction over personal status laws (marriage, divorce, inheritance) and moral crimes, as well as church property and personnel, matters which regularly overlapped with the jurisdiction of other courts. Furthermore, different bodies of law could be applicable in a given court in a given case. "It was common to find many different codes of customary law in force in the same kingdom, town or village, even in the same house, if the ninth century bishop Agobard of Lyons is to be believed when he says, 'It often happened that five mem were present or sitting together, and not one of them had the same law as another.'" In long settled areas, the personal law of communities became local customary law. People living within cities were subject to municipal statutes and customary law on certain matters (penal law, procedural), and the community law to which they were attached. (shrink)

Drawing on philosophical pragmatism, Tamanaha formulates a framework for a realistic approach to socio-legal theory. The strengths of this approach are contrasted with that of the major schools of socio-legal theory by application to core issues in this area. Thus Tamanaha explores the problematic state of socio-legal studies, the relationship between behaviour and meaning, the notion of legal ideology, the problem of indeterminacy in rule following and application, and the structure of judicial decision making. These issues are tackled (...) in a clear and concise fashion while articulating a social theory of law that draws equally from legal theory and socio-legal theory. `This book provides a useful, and at times provocative, review of recent developments in legal theory. Because it covers considerable territory, it should be a good addition to one's professional library... there is much to commend in this book. It is well written, ably argued, and generally knowledgeable. It treats controversial topics forthrightly...an excellent review of the legal theory literature.... It should provide a worthwhile venture into familiar debates rendered from a perspective that owes allegiance to no side.' Law and Politics Book Review `by any criterion and excellent book...Tamanaha has produced a work which should feature as a core text in jurisprudence courses' Oxford Journal of Legal Studies `This is the most significant piece of work for anybody in Jurisprudence, Socio-Legal Studies, or Legal Theory' Neil MacCormick `a rich insight into almost every question legal theory has vexed itself over the past twenty-five years' Stanley Fish. (shrink)

The rule of law is the most important political ideal today, yet there is much confusion about what it means and how it works. This 2004 book explores the history, politics, and theory surrounding the rule of law ideal, beginning with classical Greek and Roman ideas, elaborating on medieval contributions to the rule of law, and articulating the role played by the rule of law in liberal theory and liberal political systems. The author outlines the concerns of Western conservatives about (...) the decline of the rule of law and suggests reasons why the radical Left have promoted this decline. Two basic theoretical streams of the rule of law are then presented, with an examination of the strengths and weaknesses of each. The book examines the rule of law on a global level, and concludes by answering the question of whether the rule of law is a universal human good. (shrink)

A theoretical and sociological exploration of the relationship between law and society, this book constructs an approach to law that integrates legal theory with sociological approaches to law. Law is generally understood to be a mirror of society--a reflection of its customs and morals--that functions to maintain social order. Focusing on this common understanding, the book conducts a survey of Western legal and social theories about law and its relationship within society, engaging in a theoretical and empirical critique of this (...) common understanding. (shrink)

How might the social sciences best be employed in the study of law, especially in light of today's legal climate of anti-foundationalism? Realistic Socio-Legal Theory addresses this question thoroughly and precisely. Drawing upon philosophical pragmatism to construct an epistemological and methodological foundation, this book formulates a framework for a realistic approach to socio-legal theory. Brian Z. Tamanaha contrasts the strengths of his realistic approach with those of the major schools of socio-legal theory through application to many key issues (...) in the field. He explores the problematic state of socio-legal studies, the relationship between behavior and meaning, the notion of legal ideology, the nature of the concept of law, the problem of indeterminacy in rule following and application, and the structure of judicial decision making. Tamanaha's discussion is always clear and concise as he articulates a social theory of law that draws equally from legal theory and socio-legal studies. His book has much to offer those interested in the gathering and organization of knowledge about law and legal phenomena. (shrink)

Prominent analytical jurisprudents assert that a theory of law consists of necessary, universal truths about the nature of law. This often-repeated claim, which has not been systematically established, is critically examined in this essay. I begin with the distinction between natural kinds and social artifacts, drawing on the philosophy of society to show that necessity claims about law require a fundamental reworking of basic understandings of ontology and epistemology, which legal philosophers have not undertaken. I show law is a poor (...) fit for a priori and a posteriori knowledge. I distinguish between universal application and universal truth, showing the former is sound while the latter is not. I expose the implications that follow from the initial selection of the central case of law, demonstrating that this choice must be justified, and I reveal two ways analytical jurisprudents shield their theories of law from refutation. This analysis raises significant doubts about the claim by analytical jurisprudents that they are identifying necessary, universal truths about the nature of law. (shrink)

This chapter contains sections titled: A Mirror of Society that Functions to Maintain Social Order Law as Social Ordering The Institutional Form of Law The Semiautonomy of Legal Knowledge and Processes Legal Pluralism Law and Society in the Twenty‐First Century–Law as an Instrument References.

Sociological Approaches to Theories of Law applies empirical insights to examine theories of law proffered by analytical jurisprudents. The topics covered include artifact legal theory, law as a social construction, idealized accounts of the function of law, the dis-embeddeness of legal systems, the purported guidance function of law, the false social efficacy thesis, missteps in the quest to answer 'What is law?', and the relationship between empiricism and analytical jurisprudence. The analysis shows that on a number of central issues analytical (...) jurisprudents assert positions inconsistent with the social reality of law. Woven throughout the text, the author presents a theoretically and empirically informed account of law as a social institution. The overarching theme is that philosophical claims about the nature of law can be tested and improved through greater empirical input. (shrink)

H.L.A. Hart described his classic book, The Concept of Law, as a work in «descriptive sociology», and his aspiration was to produce a general jurisprudence. He was less than successful in achieving both of these aims. This article attempts a comprehensive reconstruction of legal positivism in a manner that will render it more compatible with a sociological approach, and more amenable to the project of general jurisprudence. The label «socio-legal positivism» reflects the fact that this article grafts the insights and (...) orientation of socio-legal theory onto the core tenets of legal positivism. In the course of this reconstruction, certain traditional views of legal positivists, especially those regarding the function of law and the nature of the concept of law, are discarded or modified. A number of Hart's key insights are preserved, but resituated within a broader framework. And the relationship between legal positivism and natural law is altered dramatically. The result of this reconstruction is the foundation for the construction of a general jurisprudence that better fits the complex and variable situation of law in society today. (shrink)

Brian Z. Tamanaha has written extensively on realism in jurisprudence, but in his Realistic Theory of Law (2018), he uses "realism" in a commonplace way to ground a rough outline of legal history. While he refers to his method as genealogical, he does not acknowledge the complex tensions in the development of the philosophical use of that term from Nietzsche to Foucault, and the complex epistemological issues that separate them. While the book makes many interesting points, the methodological (...) concerns outweigh them in the overall assessment of the value of the work. (shrink)

At the same time that social justice concerns are on the rise on college campuses, empathy levels among US college students are falling. Social injustice resulting from organizational decisions and actions causes profound and unnecessary human suffering, and research to understand antecedents to these decisions and actions lacks attention. Empathy represents a potential tool and critical skill for organizational decision-makers, with empirical evidence linking empathy to moral recognition of ethical situations and greater breadth of understanding of stakeholder impact and improved (...) financial success. This study explores the potential relationship between empathy and social justice, using a multifaceted operationalization of social justice, which includes management actions and social sympathies. Results broadly support the positive empathy and social justice relationship and suggest higher education interventions to develop empathy in college business students. (shrink)

Rationale: Deep brain stimulation (DBS) of the hippocampus is proposed for enhancement of memory impaired by injury or disease. Many pre-clinical DBS paradigms can be addressed in epilepsy patients undergoing intracranial monitoring for seizure localization, since they already have electrodes implanted in brain areas of interest. Even though epilepsy is usually not a memory disorder targeted by DBS, the studies can nevertheless model other memory-impacting disorders, such as Traumatic Brain Injury (TBI). Methods: Human patients undergoing Phase II invasive monitoring for (...) intractable epilepsy were implanted with depth electrodes capable of recording neurophysiological signals. Subjects performed a delayed-match-to-sample (DMS) memory task while hippocampal ensembles from CA1 and CA3 cell layers were recorded to estimate a multi-input, multi-output (MIMO) model of CA3-to-CA1 neural encoding and a memory decoding model (MDM) to decode memory information from CA3 and CA1 neuronal signals. After model estimation, subjects again performed the DMS task while either MIMO-based or MDM-based patterned stimulation was delivered to CA1 electrode sites during the encoding phase of the DMS trials. Each subject was sorted (post hoc) by prior experience of repeated and/or mild-to-moderate brain injury (RMBI), TBI, or no history (control) and scored for percentage successful delayed recognition (DR) recall on stimulated vs. non-stimulated DMS trials. The subject’s medical history was unknown to the experimenters until after individual subject memory retention results were scored. Results: When examined compared to control subjects, both TBI and RMBI subjects showed increased memory retention in response to both MIMO and MDM-based hippocampal stimulation. Furthermore, effects of stimulation were also greater in subjects who were evaluated as having pre-existing mild-to-moderate memory impairment. Conclusion: These results show that hippocampal stimulation for memory facilitation was more beneficial for subjects who had previously suffered a brain injury (other than epilepsy), compared to control (epilepsy) subjects who had not suffered a brain injury. This study demonstrates that the epilepsy/intracranial recording model can be extended to test the ability of DBS to restore memory function in subjects who previously suffered a brain injury other than epilepsy, and support further investigation into the beneficial effect of DBS in TBI patients. (shrink)

In this paper I try briefly to say why I think that what D.Z. Phillips had to say about belief in God can be defended against certain familiar criticisms, and why I think that his treatment could have been improved. I note passages in his writings which might be thought not to reflect what belief in God amounts to, but I argue that these passages can be read as reflecting belief in God as we find it in biblical authors and (...) in writers like Thomas Aquinas. Having noted that Phillips rejects attempts to do natural theology on largely Humean grounds, I argue against these grounds as echoed by Phillips and draw attention to a tradition of natural theology not subject to Humean objections, a tradition to which Phillips might have paid more attention than he did. (shrink)

This paper notes and discusses some key arguments in Part One of The Problem of Evil and the Problem of God by D. Z. Phillips. With an eye on some texts of Thomas Aquinas, I reject Phillips's view that belief in divine omnipotence leads to absurd claims concerning God, but I defend his rejection of anthropomorphism when it comes to talk of God, and, with qualifications, I defend and elaborate on his suggestion that God is not a moral agent. I (...) also commend his critique of certain well-known theodicies (e.g. that provided by Richard Swinburne), although I challenge his appeal to what he calls “the grammar of God.”. (shrink)

In this response to D. Z. Phillips's critique of my interpretation of Wittgenstein's view of magic and ritual, I counter Phillips's claim that I have misrepresented the Wittgensteinian view of ritual, consider the instrumentalist dimension of the Remarks on Frazer's Golden Bough, offer some objections to Phillips's expressivist view that a ritual ‘says itself’, and detect obscurantism in his approach to the study of religion.

Most recent work on the nature of experiment in physics has focused on "big science"--the large-scale research addressed in Andrew Pickering's Constructing Quarks and Peter Galison's How Experiments End. This book examines small-scale experiment in physics, in particular the relation between theory and practice. The contributors focus on interactions among the people, materials, and ideas involved in experiments--factors that have been relatively neglected in science studies. The first half of the book is primarily philosophical, with contributions from Andrew Pickering, Peter (...) Galison, Hans Radder, Brian Baigrie, and Yves Gingras. Among the issues they address are the resources deployed by theoreticians and experimenters, the boundaries that constrain theory and practice, the limits of objectivity, the reproducibility of results, and the intentions of researchers. The second half is devoted to historical case studies in the practice of physics from the early nineteenth to the early twentieth century. These chapters address failed as well as successful experimental work ranging from Victorian astronomy through Hertz's investigation of cathode rays to Trouton's attempt to harness the ether. Contributors to this section are Jed Z. Buchwald, Giora Hon, Margaret Morrison, Simon Schaffer, and Andrew Warwick. With a lucid introduction by Ian Hacking, and original articles by noted scholars in the history and philosophy of science, this book is poised to become a significant source on the nature of small-scale experiment in physics. (shrink)

Brian Leftow offers a theist theory of necessity and possibility, and a new sort of argument for God's existence. He argues that necessities of logic and mathematics are determined by God's nature, but that it is events in God's mind - his imagination and choice - that account for necessary truths about concrete creatures.

In this article I argue that justice often requires that candidates who are sufficiently qualified for jobs be hired via lottery on the basis that this is the best way to recognise each candidate's equal moral claim to access meaningful work. In reaching this conclusion I consider a variety of potential objections from the perspectives of the employer, of the most qualified candidate, and of third parties, but ultimately reject the idea that a person's status as the most qualified candidate (...) can explain why they ought to be appointed over other sufficiently qualified candidates. (shrink)

Thomas Aquinas was one of the greatest Western philosphers and one of the greatest theologians of the Christian church. In this book we at last have a modern, comprehensive presentation of the total thought of Aquinas. Books on Aquinas invariably deal with either his philosophy or his theology. But Aquinas himself made no arbitrary division between his philosophical and his theological thought, and this book allows readers to see him as a whole. It introduces the full range of Aquinas' thinking; (...) and it relates his thinking to writers both earlier and later than Aquinas himself. (shrink)

This introduction to legal theory provides a broad overview of the main topics and theories and covers the central issues. Written in a straightforward style, the author conveys academically challenging and often controversial ideas in a lucid manner.

The view that phenomenally conscious robots are on the horizon often rests on a certain philosophical view about consciousness, one we call “nomological behaviorism.” The view entails that, as a matter of nomological necessity, if a robot had exactly the same patterns of dispositions to peripheral behavior as a phenomenally conscious being, then the robot would be phenomenally conscious; indeed it would have all and only the states of phenomenal consciousness that the phenomenally conscious being in question has. We experimentally (...) investigate whether the folk think that certain (hypothetical) robots made of silicon and steel would have the same conscious states as certain familiar biological beings with the same patterns of dispositions to peripheral behavior as the robots. Our findings provide evidence that the folk largely reject the view that silicon-based robots would have the sensations that they, the folk, attribute to the biological beings in question. (shrink)

In this article I argue that we should understand some forms of hypocritical behaviour in terms of epistemic injustice; a type of injustice in which a person is wronged in their capacity as a knower. If each of us has an interest in knowing what morality requires of us, this can be undermined when hypocritical behaviour distorts our perception of the moral landscape by misrepresenting the demandingness of putative moral obligations. This suggests that a complete theory of the wrongness of (...) hypocrisy must account for hypocrisy as epistemic injustice. (shrink)

This book uses computer modeling to investigate trends in what is published in leading philosophy journals over the last century and a half. The notable trends include the rise of realism from a fringe view to the mainstream metaphysical outlook, the increase in specialization, and the increasing depth of integration between philosophy and physical sciences. It also contains a guide to how to do similar investigations, and discussions of the strengths and weaknesses of the approach.

This chapter explores a way in which visual processing may involve innate constraints and attempts to show how such processing overcomes one enduring challenge to nativism. In particular, many challenges to nativist theories in other areas of cognitive psychology have focused on the later development of such abilities, and have argued that such development is in conflict with innate origins. Innateness, in these contexts, is seen as antidevelopmental, associated instead with static processes and principles. In contrast, certain perceptual models demonstrate (...) how the very same mental processes can both be innately specified and yet develop richly in response to experience with the environment. This process is entirely unmysterious, as shown in certain formal theories of visual perception, including those that appeal to spontaneous endogenous stimulation and those based on Bayesian inference. (shrink)

Infallibilism leads to skepticism, and fallibilism is plagued by the threshold problem. Within this narrative, the pragmatic turn in epistemology has been marketed as a way for fallibilists to address the threshold problem. In contrast, pragmatic versions of infallibilism have been left unexplored. However, I propose that going pragmatic offers the infallibilist a way to address its main problem, the skeptical problem. Pragmatic infallibilism, however, is committed to a shifty view of epistemic certainty, where the strength of a subject’s epistemic (...) state can vary depending upon the practical context. Pragmatic views of epistemic strength are quite radical so the argumentative goal of my discussion is to argue for its plausibility, thereby arguing for the plausibility of pragmatic infallibilism. To do so, I discuss the role that the framing of decision problems and the construction of our deliberative attitudes have in our theories of rational choice. And I explore a way in which these necessary components of a normative theory of rationality can be used to motivate pragmatic views of evidential support. Finally, since the plausibility of our pragmatic account will depend upon the plausibility of a constructive account of rational choice, I conclude by comparing the adequacy of the constructive account with orthodox Bayesian and knowledge-based accounts. (shrink)

This book examines John Locke as a theorist of migration, immigration, and the movement of peoples. It outlines the contours of the public discourse surrounding migration in the seventeenth century and situates Locke's in-depth involvement in these debates. The volume presents a variety of undercurrents in Locke's writing - his ideas on populationism, naturalization, colonization and the right to withdrawal, the plight of refugees, and territorial rights - which have great import in present-day debates about migration. Departing from the popular (...) extant literature that sees Locke advocating for a strong right to exclude foreigners, the author proposes a Lockean theory of immigration that recognizes the fundamental right to emigrate, thus, catering to an age wrought with terrorism, xenophobia and economic inequality. A unique and compelling contribution, the volume will be of great interest to scholars and researchers of political theory, political philosophy, history of international politics, international relations, international political economy, public policy, seventeenth century English history, migration and citizenship studies, and moral philosophy. (shrink)

The popularity of direct-to-consumer genetic ancestry services has exploded over the past five years, with as many as 250 direct-to-consumer genetic ancestry testing companies currently operating and estimates that 1 in 5 Americans are customers of one or more of those companies. Marketing of genetic ancestry testing has consistently linked the results of DNA testing to a consumer’s racial and ethnic identity, and, because of that, can help consumers find out “who they really are.” We argue that the “biologization” of (...) race and ethnicity promoted in such marketing violates norms of marketing ethics. In particular, we show that this marketing technique violates a number of the core commitments and values of the American Marketing Association Statement of Ethics. (shrink)

Would God's existence be a good thing for us? According to anti-theism, the answer is No. Probably, many theists will want to reject anti-theism. But it isn’t obvious why. After all, whether p is good for us is logically independent from whether p is true. So anti-theism seems entirely compatible with theism. In this essay, however, I argue this seeming compatibility is mistaken. If anti-theism is true, then the theism of most practicing believers is false. And if I am right (...) about this, then anti-theism presents a serious challenge to traditional theistic belief, notably theistic belief anchored in the Bible. (shrink)