In his provocative new book, A Realistic Theory of Law, (1) Brian Tamanaha offers a variety of insightful analyses and conclusions that may shake up analytical jurisprudence for years to come. In the course of a relatively short and highly accessible work, Tamanaha challenges conceptual theories of law and conventional understandings of international law, clarifies important aspects of legal pluralism, and provides a novel, genealogical approach to thinking about the nature of law. It would take a whole other book (and likely a much longer one) to give due consideration to all of these topics, so the focus of this commentary must necessarily be much narrower. In this article, I focus on Tamanaha's argument for a greater appreciation of historical jurisprudence, and his advocacy for a variation of it, his presentation of this alternative as a necessary supplement to the current widely-accepted understandings of law.
To look at these topics, we need to follow Tamanaha's book by first considering what the original historical jurisprudence offered and what a revived version might add to contemporary debates. Part I offers a brief overview of historical jurisprudence. Part II explores Tamanaha's views of, and claims for, a revived historical jurisprudence. Part III looks at some problems in evaluating historical jurisprudence. Finally, Part IV considers what it means for history to inform legal theory, before concluding.
The Historical Jurisprudence Tradition and Law
Tamanaha reminds us that historical jurisprudence was, for a significant period of time, one of the two or three most prominent approaches to law (at least among European and English-language theorists), alongside legal positivism, and perhaps natural law theory. (2) The figure most closely associated with historical jurisprudence is Friedrich Karl von Savigny. (3) Through his theoretical work, and his work reforming and administering the German university system, Savigny apparently became, in his time, as renowned as Goethe. (4)
Savigny became prominent in the struggle opposing codification of the law in Germany, and his arguments were later used in the United States to oppose codification here. As Tamanaha nicely summarizes, Savigny argued that law arises from the "spirit" of a people (Volksgeist,5) and, for that reason, it is a serious error to impose a legal code from another country on a community. (6) For Savigny, law should develop incrementally, expressing the natural development of customs and (what we today would call) social norms. He viewed it as instructive that for ancient Roman Law, "[s]o long as the law was in active progression, no code was discovered to be necessary, not even at the time when circumstances were most favourable for it." (7)
Savigny's historical jurisprudence sits uneasily between description and prescription. A country's rules both do and should reflect that society's particular character or "spirit." Under this analysis, it is equally unwise and inappropriate to impose another community's rules on a country, or to replace a country's customary rules with a sterile code imposed from above. (8) Followers of Savigny, like followers of Karl Marx and Friedrich Engels, face a problem in their prescriptions. If law or society inevitably reflects some underlying spirit (or, in the case of Marx/Engels, the level of development or the current stage of production), then it seems at best futile and at worst absurd to advocate for or against change (for worker's rights or against codification), for whatever is determined will happen, and whatever the law is, by theory, will reflect the spirit or the social circumstances of the people. There would seem to be little left to do--either by reformers, revolutionaries, or the forces of reaction. Such is the nature of determinism (or pre-destination, for that matter). The laws--reflecting the consciousness of the people or the economic conditions--can only be exactly what they are.
It is only if there is some chance that bad interlopers could push us from the path our spirit and culture creates that we would have need to intervene. However, if law reformers persuade officials to enact a civil code--based on the French Code or ancient Roman Law or some other source--perhaps that is what the current spirit of the people requires. Yet there always remains the argument for a kind of purism: to bring us back to the true spirit of the people (as others have argued for going back to the Early Church, or the true Constitution). (9)
There is an even more basic problem with Savigny's position. Tamanaha is right to be critical of Savigny's approach--at least to treat it as missing an important part of the truth. As Tamanaha points out, one can as often explain historically (causally) the content of a country's law by reference to the exploitation of the masses by an elite or a conquering country as by the immemorial customs of the Volk. (10) Over the centuries there has been at least as much "top down" lawmaking--imposition on the masses--as "bottom up" emanation from the spirit of a people.
Another well-known figure in historical jurisprudence was Sir Henry Maine. Maine emphasized the study of other societies and legal systems, (11) both ancient and modern; and he (like theorists such as Vico, (12) Hegel, (13) and Marx (14)) asserted, or at least assumed, that there were set patterns of historical change that all societies went through. (15) His famous comment about the progress "from Status to Contract" (16) was part of one such claim (though, strangely, "[i]n later works, Maine left this phrase unamended and never sought to elaborate the most famous of his insights)." (17)
Historical jurisprudence, at its most ambitious, offered a grand vision, in which society, history, and law were connected in a way which explained the developments of communities and communities' laws over time, as part of a larger historical or sociological story. Tamanaha speculates that historical jurisprudence (at least under that name) "faded from the jurisprudential scene" (18) due to a variety of factors: "No systematic theory was articulated by its founders" and later theorists in the tradition (19) "failed to organize its fundamental propositions." (20) A related explanation would emphasize that grand historical narratives of all kinds have lost favor: it is hard to find support these days for grand and universal historical narratives--whether of the kind favored by Vico, Hegel, Marx, or Maine--or, even that old favorite, the so-called "Whig Theory of History." (21)
Of course, one need not buy into any grand theory of history to believe that the past affects the present, and that we should learn from what came before. The role history does have, and should have, in law and legal theory will be considered at greater length in the next two sections.
Tamanaha and Historical Jurisprudence
As already noted, Tamanaha, in A Realistic Theory of Law, emphasizes the prominence historical jurisprudence once held. As another scholar described, that approach had been "the dominant school of legal theory in the United States in the late nineteenth and into the first decades of the twentieth century, both among legal scholars and the courts." (22) Tamanaha also notes the way that this approach offered an important supplement to natural law approaches and legal positivism (a theme taken up further below). What does a...