The third pillar of jurisprudence: social legal theory.

• Author: Tamanaha, Brian Z.

TABLE OF CONTENTS INTRODUCTION I. THREE NINETEENTH-CENTURY RIVALS II. LAW AS A SOCIAL INSTITUTION III. SOCIAL THEORY OF LAW AT THE CENTER OF HISTORICAL JURISPRUDENCE IV. THE CONTINUITY OF SOCIOLOGICAL JURISPRUDENCE V. SOCIAL THEORY OF LAW WITHIN LEGAL REALISM AND CONTEMPORARY LEGAL THOUGHT VI. SOCIAL LEGAL THEORY VII. THREE CONTRASTING-COMPLEMENTARY ANGLES ON LAW VIII. "BUT IT'S NOT PHILOSOPHY OF LAW" IX. WHY IT MATTERS INTRODUCTION

When contemporary legal theorists engage the question "What is law?" their analyses typically are framed in terms of a grand contest between legal positivism and natural law. In an encyclopedic entry on "The Nature of Law," Andrei Marmor observes:

In the course of the last few centuries, two main rival philosophical traditions have emerged, providing different answers to [traditional] questions [regarding the nature of law]. The older one, dating back to late mediaeval Christian scholarship, is called the natural law tradition. Since the early 19th century, Natural Law theories have been fiercely challenged by the legal positivism tradition promulgated by such scholars as Jeremy Bentham and John Austin. (1) A recent text entitled The Nature of Law covers only the debate between natural lawyers and legal positivists. (2)

These two hold pride of place in standard accounts of jurisprudence, (3) standing above an unruly jumble of other theoretical approaches. (4) A common arrangement in jurisprudence texts is to begin with natural law and legal positivism, in that order, followed by legal realism, and then a host of contemporary schools of thought. (5) This ordering is chronological as well as thematic: natural law theory began in classical times; (6) legal positivism arose in the nineteenth century to challenge natural law; (7) legal realism arose in the 1920s and 1930s to debunk formalist views of law; (8) the Hart-Fuller debate of the late 1950s marked the reenergizing of legal positivism; (9) and in the 1970s, Dworkin challenged Hart's dominance, (10) law and economics examined law from an economic perspective, (11) and critical legal studies of the radical left attacked mainstream legal liberalism. (12) Now we have a hodge-podge of descendants or variations of these schools, with natural law and legal positivism enjoying prominence above all others.

A third major pillar of jurisprudence exists, I argue in this Article, and has existed for several centuries as a rival to natural law and legal positivism, though it goes mostly unrecognized today owing to the vagaries of labeling and intellectual fashion. (13) Despite lacking an acknowledged name and identity, several of the core propositions of this theoretical stream are now virtually taken for granted--a remarkable achievement for a theoretical perspective on law that remains all but invisible.

Contrary to what the title might suggest, it is not my contention that every existing legal theory can be squeezed into one of these three jurisprudential approaches; nor do I claim that this is the only way to categorize current theories about law. (14) My claims are more limited: this third theoretical stream constitutes a long-standing and coherent alternative to natural law and legal positivism and the theoretical discussion of law will benefit from recognizing it as such. (15) Recognition of this third branch of jurisprudence will create a framework that facilitates the incorporation of insights currently at the margins of discussions of the nature of law, including insights about legal institutions, legal functions, legal efficacy, legal change, legal practices, legal development, legal pluralism, legal culture, and more. (16) This jurisprudential tradition, labeled "social legal theory" for reasons that will become evident, is characterized by a consummately social view of the nature of law. (17)

1. THREE NINETEENTH-CENTURY RIVALS

   I will first attempt to loosen the grip of conventional assumptions by noting that legal theorists a century ago would have been surprised by Marmor's identification of only two great jurisprudential rivals and also by the prominence he accords to natural law. (18) As Roscoe Pound wrote in 1911:

   Until recently, it has been possible to divide jurists into three principle groups, according to their views of the nature of law and the standpoint from which the science of law should be approached. We may call these groups the Philosophical School [natural law], the Historical School, and the Analytical School. (19) In the late nineteenth century, the historical school was equal in stature to legal positivism, (20) whereas natural law theory was mired in a lengthy state of quietude. (21) As legal historian J.M. Kelly put it:

   If we scan the nineteenth century for any trace of the natural-law belief which had survived from the ancient world until well after the Reformation, being eclipsed only by the rational scientific spirit of the Enlightenment, we will find it difficult to locate anywhere outside the teaching of the institutional Catholic Church, which never abandoned the Aristotelian-Thomistic tradition. (22) This statement sweeps too broadly, for it ignores that natural law thought was taught in the standard school curriculum during this period, (23) but Kelly is right that jurisprudents hardly write about natural law theory. (24)

   Natural law was in such disfavor in philosophical circles by the end of the nineteenth century that it was occasionally suggested that there was no reason to mount scholarly arguments against it. (25) Renowned Oxford Professor James Bryce remarked in Studies in History and Jurisprudence that "we now seldom hear the term Law of Nature. It seems to have vanished from the sphere of politics as well as from positive law." (26) For decades it remained dormant. An article in 1915 noted, "[n]ow and again we are told that a revival of the Law of Nature is in process or impending," but continued, a "new movement of this character ... can scarcely be [seen]." (27) Lon Fuller lamented in 1940 that natural law was then widely perceived as "cobwebby illusion." (28) He wrote:

   I believe that there is much of great value for the present day in the writings of those thinkers who are classified, and generally dismissed, as belonging to the school of natural law, and I regard it as one of the most unfortunate effects of the positivistic trend still current that it has contributed to bring about the neglect of this important and fruitful body of literature. (29) Historical jurisprudence was a formidable rival not just in eclipsing natural law for a time, but in mounting a powerful critique against natural law: (30) "All thinkers in the historicist tradition held that the doctrine of natural law had illegitimately universalized the values of eighteenth-century Europe as if they held for all epochs and cultures." (31) Friedrich von Savigny, the nineteenth-century progenitor of historical jurisprudence, offered the historical perspective as an antidote to this natural law tendency: "The historical spirit, too, is the only protection against a species of self-delusion, which is ever and anon reviving in particular men, as well as in whole nations and ages; namely, the holding that which is peculiar to ourselves to be common to human nature in general." (32) Henry Maine, another founding figure of historical jurisprudence, traced this challenge to the mid-eighteenth century: "[T]he book of Montesquieu, with all its defects, still proceeded on that Historical Method before which the Law of Nature has never maintained its footing for an instant." (33)

   The conventional jurisprudential narrative dismisses these details of intellectual history by pointing to subsequent developments: historical jurisprudence expired early in the twentieth century while natural law theory revived after mid-century. (34) "In the United States, historical jurisprudence is considered to be dead," wrote legal historian and theorist Harold Berman. (35) A leading jurisprudence text proclaims, similarly, "historical jurisprudence has largely disappeared." (36)

   That view, I will show in this Article, although superficially correct, is wrong in substance. Although the label fell into disuse, the core theoretical propositions espoused by historical jurists, propositions that define the third stream of jurisprudence, carried on and spread. (37) These theoretical propositions did not originate with the Historical School and are not exclusive to it.

2. LAW AS A SOCIAL INSTITUTION

   Montesquieu's The Spirit of the Laws, published in 1748 to wide acclaim, contains this fecund passage:

   Laws must relate to the nature and the principle of the government that is established or that one wants to establish, whether those laws form it as do political laws, or maintain it, as do civil laws. They should be related to the physical aspect of the country; to the climate, be it freezing, torrid, or temperate; to the properties of the terrain, its location and extent; to the way of life of the peoples, be they plowmen, hunters, or herdsmen; they should relate to the degree of liberty that the constitution can sustain, to the religion of the inhabitants, their inclinations, their wealth, their number, their commerce, their mores and their manners; finally, the laws are related to one another, to their origin, to the purpose of the legislator, and to the order of things on which they are established. They must be considered from all these points of view. (38) "Law should be so appropriate to the people for whom they are made," he advised, "that it is very unlikely that the laws of one nation can suit another." (39)

   Montesquieu set forth a descriptive and prescriptive account of law as a social institution that fits its surrounding milieu, and ought to match if the legal system and society are to function well. Law is a social institution shaped by society and, in turn, shaping society. Law is the product of and reflects the polity, religion, trade...