A Realistic Theory of LawThis book articulates an empirically grounded theory of law applicable throughout history and across different societies. Unlike natural law theory or analytical jurisprudence, which are narrow, abstract, ahistorical, and detached from society, Tamanaha's theory presents a holistic vision of law within society, evolving in connection with social, cultural, economic, political, ecological, and technological factors. He revives a largely forgotten theoretical perspective on law that runs from Montesquieu through the legal realists to the present. This book explains why the classic question 'what is law?' has never been resolved, and casts doubt on theorists' claims about necessary and universal truths about law. This book develops a theory of law as a social institution with varying forms and functions, tracing law from hunter-gatherer societies to the modern state and beyond. Tamanaha's theory accounts for social influences on law, legal influences on society, law and domination, multifunctional governmental uses of law, legal pluralism, international law, and other legal aspects largely overlooked in jurisprudence. |
Contents
What Is Law? | 38 |
Necessary and Universal Truths about Law? | 57 |
A Genealogical View of Law | 82 |
Law in the Age of Organizations | 118 |
What Is International Law? | 151 |
A Realistic Theory of Law | 194 |
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Common terms and phrases
American analytical jurisprudents assertion Bentham Cambridge University Press century chiefdoms civil claims collectively recognized common law concept of law constitutive count as law courts customary law customs domestic economic empirical enforcement Eugen Ehrlich exist forms of law function Global H. L. A. Hart Hart’s Harvard historical jurisprudence History hunter-gatherer identified interaction international law international legal Joseph Raz Journal of International judges Justice Karl Llewellyn law’s lawyers legal fabric legal institutions legal officials legal philosophers Legal Pluralism legal positivism legal rules legal systems legislation Leslie Green Montesquieu moral multiple nature of law necessary features norms organizations Oxford University Press perspective political property rights regulation Roman law Roscoe Pound rule systems rules of social Shapiro Smith social institutions social intercourse social legal theory social ordering sociological jurisprudence Spontaneous Order supra Tamanaha theoretical theorists theory of law tions transnational law treaties World