Author:Postema, Gerald J.
Position:Symposium on Brian Z. Tamanaha's 'A Realistic Theory of Law'

"Since jurisprudence is a science of human activities, and touches humanity both on its social and its individual side, it has relations to all human sciences." (1)

In contemporary jurisprudential writing, there is no lack of attention to method. Although I have participated in this activity, (2) I have reservations about it, partly because it tends to be narcissistic, but more because it can encourage an unwelcome form of intellectual-boundary policing. Despite these reservations, I will offer in this essay some reflections on method in jurisprudence, reflections stirred by Professor Tamanaha's impressive new book, A Realistic Theory of Law. (3) Although my remarks will be critical at points, they are meant to build on and elaborate proposals Tamanaha makes in his book, and are offered in the hope of expanding jurisprudential efforts and effacing intellectual boundaries, rather than defining new ones or policing old ones.

William Galbraith Miller, in a remarkable, albeit puzzling, book written at the turn of the twentieth century, anticipated a central methodological theme of Tamanaha's work. He wrote, "Our primary object in Jurisprudence ... may be to enumerate, classify, and account for the various shapes which the matter under investigation has assumed." (4) He further noted, "Common sense rebels against the restriction of jurisprudence to the anatomy of the skeleton of law in forms, and strives continually to deal with the physiology of society." (5)

Tamanaha argues vigorously and persuasively for the revival of a genuinely historical and sociological dimension of jurisprudence. He develops and defends such a theory that locates law in the living, constantly changing environment of human societies. In the first part of this essay, I will argue for an understanding of the enterprise of jurisprudence that is even more ambitious than Tamanaha's, but one that finds a secure place for his historical and social theory. In the second section of this essay, I will examine the methodology of Tamanaha's social-legal theory, offering suggestions aimed at further elaborating and enriching it.

  1. The Jurisprudential Enterprise

    I begin with some unscientific observations. Law, the focal subject of the enterprise of jurisprudence, is a complex social phenomenon linked with other social phenomena that structure the lives of human beings who are equipped with certain distinctive capacities, limited by certain weaknesses, and driven by certain needs, among them the need to live together. This is not a theoretically partisan thought, but a common starting point for philosophical reflection on law for more than two millennia. It is as central to the thinking of Aristotle and Aquinas as to that of Grotius and Hobbes, to Marsilius of Padua as to Matthew Hale and Jeremy Bentham. We might likewise observe that the specific shape law might take in any community of human beings can vary with differences in the social, political, and natural circumstances in which they live, and that these variations themselves vary over time. This observation was available to ancient as well as modern writers.

    Thus, the notion that to understand law we need to observe its forms and behavior in its natural social and historical habitat is not a piece of hardwon theoretical wisdom; it is just common sense. It is not a little surprising, then, that in the twenty-first century a theorist of law of Tamanaha's sophistication should find it necessary to argue these observations shape the jurisprudential enterprise. Yet, contemporary jurisprudence has found it easy to ignore them. Tamanaha's work in A Realistic Theory of Law demonstrates the value of keeping them clearly in view.

    Tamanaha seeks to revitalize the historical-sociological tradition of jurisprudential thinking that flourished at the turn of the twentieth century--a tradition that has been systematically dismissed (when it is not simply ignored) by contemporary legal theory. He argues that it has a rightful and vital place alongside "natural law" (i.e., systematic normative moral-political philosophy) and "analytic jurisprudence" (dominated these days by latter-day Hartian positivism). These three branches represent different perspectives or "angles" on law, each with its distinctive theoretical focus. The social-historical "angle" must be added to the other two, he argues, because they are blind to it, and a "new balance" among the three must be struck. I agree that robust social and historical inquiry is an integral part of the jurisprudential enterprise. I also agree that its role has not been sufficiently appreciated by contemporary Anglo-American legal philosophy. But, the three-branch frame does not accurately represent the task of contemporary jurisprudence, and it undersells the potential contribution of his social-historical inquiry to it. At the risk of offering Tamanaha an unwanted gift, I propose to sketch briefly a larger vision of the jurisprudential enterprise, in which his social-historical inquiry has a secure place.

    To begin, I believe we must revise Tamanaha's tripartite characterization of the enterprise of jurisprudence. Tamanaha's orienting assumption is that the enterprise is theoretical, aimed at understanding and explanation, rather than practical, aimed immediately at intending, judging, and acting. Nevertheless, its object is fundamentally practical. Law is a body of knowledge, to be sure, but one focused on and arising from praxis. Unfortunately, Tamanaha identifies two of the three "angles" on this object of theoretical reflection with particular theories--natural law and post-Hartian positivism. A better characterization, I suggest, would identify complementary domains and disciplines of inquiry. Among them would be the ideal domain, centered around inquiries into the values and principles by which we seek to determine what law (and laws) should be. Theorists working in this domain explore our aspirations for law and seek to articulate standards with which to evaluate current law and principles to guide construction of better law. From another perspective, we might focus on the world in which we currently live, a world of imperfect practices and institutions that demands our understanding. Our praxis is situated in ongoing practices that shape our practical deliberations. Responsible action requires that participants understand the practices and institutions, the norms, values, and concepts that give them their distinctive shape, and the larger social and historical contexts in which they operate. There are not, then, just three "angles" on legal experience, but many of them, differing with respect to the aspects or domains of legal experience on which they focus and the disciplines they deploy in seeking their contributions to understanding their common object. We need a wider methodological vision in which to locate these different disciplines.

    To capture this methodological vision, (6) I suggest we look to historical examples of a wider jurisprudential enterprise. Sir Edward Coke boasted that common-law jurisprudence was a "sociable science" (scientia socialis), drawing on the rules and principles of all the other excellent sciences, human and divine. (7) Some may wish to challenge the accuracy of Coke's description of the jurisprudential ambitions of seventeenth-century common law, although his successor, Sir Matthew Hale, did as much as any scholar and jurist of his day to bring divine, human, and...

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