One of the more important insights in H.L.A. Hart's The Concept of Law (1) comes on the very first pages of the book, where Hart insightfully observes that the typical appeal for a definition of "law" is not really a search for a definition at all, but is instead a mask for any of a number of somewhat different and less definitional questions. (2) We are puzzled about some aspect of law, Hart maintains, such as the relationship between law and morality, or the role of rules in a legal system, or the function of force and coercion in the legal order, but we disguise our specific puzzlements in a quest for a definition. (3)
Hart's admonition about how to understand a request for a definition is sound advice, and it is no less sound because Hart himself turned out in the later chapters of his book to be unfaithful to his initial diagnosis and recommendation. (4) Despite his claims in the first chapter that law might not be susceptible to traditional definition by necessary and sufficient conditions, despite the just-noted view that a request for a definition of law is typically a way of asking a different and more specific question about the character or operation of law, and despite his early explicit denial of the goal of seeking to define law at all, (5) Hart proceeds in much of the balance of his book to offer what looks very much like a definition of law. In particular, he comes close to defining law as the union of primary and secondary rules when combined with the internalization of the ultimate rule of recognition by officials. (6) And although Hart never says precisely that this is a definition of law, many of his followers, critics, and commentators have taken it to be precisely that. (7)
Brian Tamanaha, in his provocative and important challenge to many of the central themes of contemporary English-language analytical jurisprudence, (8) especially contemporary analytical jurisprudence from a legal positivist perspective, does not appear to make Hart's mistake. In saying that "[l]aw ... is whatever social groups conventionally attach the label 'law' to," (9) Tamanaha avoids giving us an actual definition of law, (10) and thus distances himself from the many contemporary and not-so-contemporary efforts to specify the necessary, essential, or sufficient conditions for some social phenomenon being law. (11) And although Tamanaha recognizes, along with Joseph Raz, (12) that different cultures may have different concepts of law, or that one culture's concept of law may change over time, Tamanaha insists that even within our concept of law the diversity of phenomena that are labeled or understood as law over time and across cultures is simply too wide to make any attempt at generalization either fruitful or illuminating. (13)
Tamanaha's anti-essentialist project (14) is an important voice in modern arguments about the nature of law. Along with various others who identify themselves as legal pluralists, (15) Tamanaha is struck far more with the vast and seemingly foundational differences among so-called legal phenomena than with what, if anything, they may have in common. But in pursuing this agenda, and especially in purporting to offer a theory of law at all, Tamanaha may find himself closer to the essentialists whom he criticizes than he suspects, and the focus of this commentary is to explain why this may be so, and why searching for a theory of law, whether realistic or not, may be more the problem than it is the solution.
MUST THEORY BE REALISTIC?
As the title of Tamanaha's book announces, he purports to offer us a realistic theory of law. And what could possibly be wrong with that, we might ask? But we cannot answer that question unless we have some idea of just what it is to be realistic. And here we might take as our guide the important observation about what it is to be "real" from the philosopher J.L. Austin. Using an unfortunately sexist metaphor and label, Austin explained that there were some words that were "trouser-words," in the sense that it is not the word under inspection but some other word, often its opposite, that "wears the trousers." (16) Shorn of the sexist label, the basic idea is that we cannot know what some words mean without understanding what they are to be distinguished from. We do not know what is meant by "direct" or "directly," for example, without understanding just which notion of "indirect" the speaker had in mind and intends to distinguish. (17) But "real" was Austin's principal example, (18) and he insists that "a definite sense attaches to the assertion that something is real ... only in the light of a specific way in which it might be, or might have been, not real." (19) A real duck might be contrasted with a toy duck, or a picture of a duck, or a duck decoy, and thus "the function of 'real' is not to contribute positively to the characterization of anything, but to exclude possible ways of being not real--and these ways are both numerous for particular kinds of things, and liable to be quite different for things of different kinds." (20)
And so too, we might think, with claims of theories to be realistic, including claims of theories of law to offer a realistic theory of law. Following Austin, we do not know just from the self-appellation of "realistic" exactly what the theory purports to tell us with its purported realism unless we have an idea of the kind of allegedly unrealistic theory that the realistic one seeks to rebut or supplement. With respect to Tamanaha's realistic theory, therefore, we would initially want to know at least something about the theories that he believes are in some important and interesting way unrealistic.
In the case of Tamanaha's realistic theory, it is plain that his target and his contrast is with those theories of law that he believes to be unrealistic in the specific sense that they fail to capture the diversity of phenomena that are understood to count as law in different cultures and at different historical periods. To be even more specific, Tamanaha believes that the theories of law offered by such prominent positivist analytical jurisprudes (21) as Joseph Raz, (22) Scott Shapiro, (23) Julie Dickson, (24) Jules Coleman, (25) and especially H.L.A. Hart (26) are not theories of law as much as they are theories of the law as it contingently happens to be manifested in contemporary liberal democratic industrialized societies. But once we realize that societies that are not contemporary, not liberal, not democratic, and not industrialized have had what they understood as law, and have had what even might be considered law under our own concept of law, we are forced, Tamanaha argues, to confront the essential unreality of conventional theories of law, an unreality he seeks to correct with his own realistic theory of law. (27)
Tamanaha situates his inquiry within the broad tradition of social legal theory, (28) sometimes called socio-legal theory (29) and sometimes sociology of law, (30) and accordingly supports his claim about the provincialism of contemporary analytic positivist legal philosophy with an impressive array of historical and cross-cultural examples drawn from the sociological, anthropological, and historical literatures. (31) These examples, and the secondary literature that analyzes them, provide extensive support for the conclusion that different societies at different times have had different views about the nature (or even the existence) of the distinction between law and other normative systems, such as those of etiquette and morality, and those that regulate sports and games; and that different societies have had different understandings of the functions of law, of its relationship to the political state, and of its systemic character, among other things. And thus, one of the many contributions of Tamanaha's book is to bring this literature and this empirical dimension into contemporary jurisprudence, which all too often treats factual inquiry and empirical observation as beyond the scope of the jurisprudential project. (32)
In attempting to incorporate this plurality or diversity of phenomena into a realistic theory of law, Tamanaha appears, at least on surface, to ignore one possible conclusion that follows from his empirical data--the possibility that there can be no theory of law at all. If the word "law" or its equivalents in other languages simply refers to a wide...