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Realistic Socio-Legal Theory: Pragmatism and A Social Theory of Law
     

Realistic Socio-Legal Theory: Pragmatism and A Social Theory of Law

by Brian Z. Tamanaha, Keith Hawkins (Introduction)
 

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How might the social sciences best be employed in the study of law, especially in light of today's legal climate of anti-foundationalism? Realistic Socio-Legal Theory addresses this question thoroughly and precisely. Drawing upon philosophical pragmatism to construct an epistemological and methodological foundation, this book formulates a framework for a realistic

Overview

How might the social sciences best be employed in the study of law, especially in light of today's legal climate of anti-foundationalism? Realistic Socio-Legal Theory addresses this question thoroughly and precisely. Drawing upon philosophical pragmatism to construct an epistemological and methodological foundation, this book formulates a framework for a realistic approach to socio-legal theory.

Brian Z. Tamanaha contrasts the strengths of his realistic approach with those of the major schools of socio-legal theory through application to many key issues in the field. He explores the problematic state of socio-legal studies, the relationship between behavior and meaning, the notion of legal ideology, the nature of the concept of law, the problem of indeterminacy in rule following and application, and the structure of judicial decision making.

Tamanaha's discussion is always clear and concise as he articulates a social theory of law that draws equally from legal theory and socio-legal studies. His book has much to offer those interested in the gathering and organization of knowledge about law and legal phenomena.

Editorial Reviews

From the Publisher
"Brian Tamanaha's thesis that pragmatism is essential because it is empty has the air of a paradox when first asserted; but in an elegantly persuasive argument he turns the paradox into a source of rich insight into almost every question legal theory has vexed itself with over the past twenty-five years."—Stanley Fish

"This book provides a useful, and at times provocative, review of recent developments in legal theory....It is well written, ably argued, and generally knowledgeable. It treats controversial topics forthrightly. For law and politics specialists who may not often tread onto legal theory ground, it is an excellent review of the legal theory literature....For those who consider themselves socio-legal scholars, of whatever epistemological persuasion, it should provide a worthwhile venture into familiar debates rendered from a perspective that owes allegiance to no side."—Law and Politics Book Review

"If the social scientific study of law has a future, it must go beyond the Scylla of empiricism and the Charybdis of empty theorizing. This book shows how this is possible."—Dennis Patterson, Distinquished Professor, Rutgers University School of Law, and author of Law and Truth (OUP, 1996)

Oxford Journal of Legal
"...by any criterion an excellent book...Tamanaha has produced a work which should feature as a core text in jurisprudence courses."
Susan O. White
This book provides a useful, and at times provocative, review of recent developments in legal theory. Because it covers considerable territory, it should be a good addition to one's professional library. It will prove serviceable for introducing graduate students to various issues in legal theory as well, not only for its coverage but also for its forthright critiques of a broad range of recent socio-legal literature. The book is less successful in providing a convincing argument for its own theoretical position (pragmatism) and prescriptions for the field ("realistic socio-legal theory"), although other readers might well disagree with my assessment. The proof of that will be in reading the book, which this reviewer highly recommends. REALISTIC SOCIO-LEGAL THEORY is not laid out in textbook fashion: i.e., as if to cover the field from A to Z. Rather, it is designed as an argument that incidentally includes much of the field. As such, it pulls the reader in from the beginning, both to the unfolding of the argument itself and to the promise of a convincing resolution. It seems best to summarize the argument, chapter by chapter, with apologies for any distortions that might result due to the limited space allowed in a review. I will conclude with several evaluative comments, both positive and negative. The argument begins with the "problematic state of socio-legal studies," particularly referring to debates among contenders for intellectual dominance which the author identifies as modernism, post-modernism, critical legal studies (CLS), interpretivism and behaviorism. Here, as sometimes elsewhere in the book, Tamanaha resorts to caricatures of these schools of thought, which can be annoying but which serves the necessary purpose of delineating the boundaries of his argument for the reader. He justifies his project by lamenting the polar relationship of law and socio-legal studies, in which legal practitioners see no value to themselves in the intellectual product of socio-legal scholars. This point of departure for his argument is spiced with an attack on the intrusion of "politics" into the debate in the form of "narrow political activism" by critical legal studies scholars. The next step in the argument is the author's presentation of pragmatism as the proper basis for salvaging socio-legal studies. He begins with a discussion of the role of Dewey and James in attacking the pervasive formalism of their day and goes on to identify new examples of formalism (e.g., law and economics) as targets for his own version of pragmatism. Tamanaha admits that there is no substantive content in pragmatism, despite attempts by critical theorists to introduce political content through their insistence on the importance of context. Even though empty of substantive content, pragmatism offers a strong basis for disputing the skepticism of postmodernism. In this vein, Tamanaha argues that the fact/value distinction can be made, although he acknowledges that socio-legal scholars often do not recognize when they conflate the two. It is a signal virtue of pragmatism, in his view, that it offers a solid "grounding" for the fact/value distinction in "the conditions of our existence which we cannot alter by our recognition of them" (p. 48). As a basis for legal theory, pragmatism bridges the divides of socio-legal scholarship because it insists on retaining a focus on meaning as well as on the material context of behavior. Tamanaha then takes on behaviorism and interpretivism. In a strong critique of each approach (based in part on how each attacks the other), he argues that the conflict between them is based on mistakes within each position (pp. 61-69 and 71-89). The behaviorists (also referred to as positivists) have produced distorted "knowledge" about law. Focusing on the work of Donald Black, he accuses "positivist studies" of squeezing reality into a box, distorting reality through quantification, and ignoring meaning. "Scientific positivism is responsible for dividing [behavior and meaning] and discarding meaning (p. 90)." Since the various statistical and other analytical devices used by positivists are arbitrary, positivists "construct the facts they purport to find (p. 64)." On the other hand, he suggests that the focus on meaning by interpretivists has not yielded much that is new about law. In particular, he argues that interpretivists have entangled themselves unproductively in the view that "false consciousness" clouds the perspectives of their subjects. Discussions of ideology by interpretivists, according to Tamanaha, are riddled with confusions. In the end, he argues that the two approaches should be seen as complementary, and offers "realistic socio-legal theory" as the "guiding perspective" for a merged approach (p. 90). The first step in his new approach is an "analytical map of the concept of law" (pp. 91-128). In this chapter, he outlines two basic views of the concept of law as developed over many years of debate in legal theory. One view (represented by Ehrlich and Malinowski) identified law with actual patterns of behavior. The defect in this view is its breadth: i.e., it includes every kind of regularized behavior, whether or not the behavior involves law. The second view concentrates on state law and institutions; therefore, it is too narrow. Tamanaha then identifies two "theses" that have been put forward to link the two views of the concept of law. The first thesis "holds that institutionally enforced norms...are derived from actually lived norms..." (p. 116). The second thesis "holds that law instrumentally shapes routine behavior in virtue of its authority as law, or due to the fear of sanction that supports the law -- legal rules thereby create new lived social rules" (p. 118). Obvious counter examples undermine both of the theses he has identified, of course, leading Tamanaha to extend his argument by proposing his own approach to linking these fundamental factors, which he calls "a social theory of law." He begins by noting the limitations of assuming that social control, or the social order, is the heart of the concept of law. (While a focus on order versus liberty is of particular interest to political scientists, Tamanaha considers it limiting.) He presents his view by first critiquing H.L.A. Hart's legal positivist approach and then showing how his social theory of law is superior to Hart's. In the process, he accuses Hart of attempting a "descriptive sociology" based on a normative concept of legitimacy. By contrast, Tamanaha proposes an approach derived from symbolic interactionism (Mead, etc.), with added touches from the interpretivist concept of a practice. Tamanaha defines the importance of symbolic interactionism as primarily: "a sophisticated exhortation...to keep an eye on how people interact and communicate, and to follow closely how these interactions connect within the broader complexes of action, all in the course of striving to understand what is going on" (p. 152). It is at this point that it becomes clear to the reader that there is no major innovation in Tamanaha's social theory of law. Hart's well-known distinction between an "internal" and an "external" perspective is the focus of considerable analysis as Tamanaha develops his social theory of law. According to Tamanaha, Hart mistakenly argues that the "internal" point of view requires "acceptance", which is a form of legitimacy and is therefore normative. (In THE CONCEPT OF LAW, Hart does distinguish between having an obligation and being obliged, between "social rules" and "mere group habits", and between an internal view of rules as "guides to conduct" and an external view that does not require acceptance; whether these distinctions make it a normative theory is not as obvious as Tamanaha asserts.) Tamanaha further argues that the internal/external distinction, although it has become a central concept for legal theory, is more complex than Hart and many more recent theorists have recognized. These complications are not, he suggests, resolved by introducing the notion of "participant" or by distinguishing among types of observer. Readers will have to judge for themselves the accuracy of Tamanaha's arraying of socio-legal scholars across the types of observation and evaluation that his analysis maps out. Suffice it here that Tamanaha retains the internal/external distinction while claiming to avoid the mistakes of Hart and others. The author's primary purpose for elaborating on Hart's internal/external distinction is to further extend his own argument. His analysis allows him to locate his social theory of law among the other theories he has been discussing and to provide the basis for applying it to what he calls "the practice of judging". First, he describes what he considers the methodological and epistemological implications of the internal/external distinction: "The methodological component relates to the contrasting strategies applied by positivists and interpretivists to the study of social life, the latter taking the position that the internal understanding of participants must be taken into account, and the former focusing on external patterns of action. Epistemological issues arise when the scientist moves beyond description to evaluate the beliefs or knowledge by standards external to that form of life" (p. 162). That Tamanaha leans toward the interpretive side is clear from his comment, in depicting the "moral overtones" of the internal/external distinction, that: "Positivistic social sciences regularly characterize human subjects as deluded or 'judgmental dupes'...or as mere pattern carriers whose very existence and actions are in the service of perpetuating the social system" (p. 162). For these socio-legal scholars, therefore, "people become mere things, and things (especially deluded things) lack moral standing" (p. 162). Without taking space to argue the matter here, I note that positivistic socio-legal scholars may well want to dispute his characterizations. Taking into account the internal understanding of participants is best achieved, in Tamanaha's view, by making use of the concept of a "practice." Originating with Wittgenstein's conceptual heuristic of rule-following in games, a practice is frequently invoked by socio-legal scholars of interpretivist bent to provide a framework for analyzing meaningful social relations within a discrete social group. Leaning toward the interpretivist side, Tamanaha also adds his pragmatist perspective. A practice is more than an interpretive community: "A practice as such is not limited to the realm of meaning -- it involves an activity, it involves doing, which contains aspects of both meaning and behavior" (p. 171). It is this last point that constitutes Tamanaha's contribution to the literature of legal theory. The argument of the book is now basically complete. It remains for Tamanaha to apply it, as he attempts to do with final chapters critiquing studies of judicial decision-making and "the practice of judging." With respect to judicial decision-making, his critique falls short in several ways. First, there is nothing new in his observations. Socio-legal scholars who do such studies have lived through (as scientists do) the process of developing and testing promising hypotheses, most of which turn out to be disconfirmed or only partially confirmed. This is how knowledge is advanced. And no one I know in the field is surprised that legal factors often play a prominent role when judges decide cases. Second, Tamanaha's focus on failures (e.g., judges' political preferences are not always the best predictors of outcomes, sentencing judges do not often discriminate by race) suggests that failure of this kind (i.e., a hypothesis disconfirmed) is the basis for his disagreement with this kind of socio-legal scholarship, rather than the epistemological differences that dominate the book. Third, Tamanaha never demonstrates that his social theory of law is a productive alternative to the positivist research that he criticizes. He argues that it is, but he does not provide any evidence by virtue of application that his perspective adds anything special, or new, to the task of studying judicial decision-making. In this respect, the promises with which he begins the book are not fulfilled. The enterprise of socio-legal scholarship is, in my view, one of building knowledge. Theory should contribute to that enterprise. I have difficulty envisioning Tamanaha's social theory of law contributing substantially to that knowledge-building enterprise. The concept of a practice and the pragmatist's focus on activity just won't do it. The practice of judging, as described and used in the book, is basic stuff, well understood by all socio-legal scholars who study judicial decision-making. Despite the use of trendy terms, such as "practice," there is nothing new there that might lead positivistic scholars to change their epistemological or methodological propensities. And the emphasis on pragmatism does not appear to alleviate the polar relationship between law and socio-legal scholarship that he laments in his opening chapter. I was also disappointed that Tamanaha did not really join many of the epistemological issues that he discusses in a way that might invite productive debate. It is unlikely, in my view, that the several sides to the controversies in socio-legal studies will be moved beyond their current adversarial positions by his discussion of their quarrels. This is unfortunate because there is much learned analysis in the book, and potentially much food for thought across the different perspectives. Even though many might agree with his attack on the political activism of CLS (on the ground that it causes harm by disillusioning prospective lawyers and judges), the argument will certainly not persuade critical scholars. In the same way, Tamanaha's uncritical use of the term "norm" (which is pregnant with multiple meanings, from how one ought to behave to how one expects others to behave to a predicted outcome, etc.) does not meet the standards of rigor most positivists require for empirical work. Positivists will also recoil from the accusation that they assume their subjects are "deluded" just because their data do not emanate from cozy personal interviews. Tamanaha also, on occasion, ignores or misuses literature that is important to his argument. For example, his discussions of legitimacy lack familiarity with social science literature, especially that focused on the general populace as opposed to functionaries. And when he uses Wittgenstein's analyses of rule-following he forgets that Wittgenstein was a philosopher engaged in doing philosophy: i.e., making conceptual points rather than descriptions. In general, Tamanaha is guilty of characterizing analyses by earlier theorists with little reference to the context of the arguments in which they were engaged. For example, Dewey's formalist targets are seldom mentioned, and Wittgenstein's overriding purpose -- to attack philosophical problems as linguistic confusions -- is never explained despite its central importance to his extensive use of the rules-of-the-game heuristic. Despite these criticisms, there is much to commend in this book. It is well written, ably argued, and generally knowledgeable. It treats controversial topics forthrightly. For law and politics specialists who may not often tread onto legal theory ground, it is an excellent review of the legal theory literature (without, for the most part, seeming like a review). For those who consider themselves socio-legal scholars, of whatever epistemological persuasion, it should provide a worthwhile venture into familiar debates rendered from a perspective that owes allegiance to no side. REFERENCES Hart, H.L.A. (1961). THE CONCEPT OF LAW. Oxford: Clarendon Press.

Product Details

ISBN-13:
9780198298250
Publisher:
Oxford University Press, USA
Publication date:
07/28/1999
Series:
Oxford Socio-Legal Studies Series
Pages:
296
Product dimensions:
5.40(w) x 8.40(h) x 0.70(d)
Lexile:
1450L (what's this?)

What People are Saying About This

Stanley Fish
"...a rich insight into almost every question legal theory has vexed itself over the past twenty-five years."
Neil MacCormick
"...is a most significant piece of work for anybody in Jurisprudence, Socio-Legal Studies, or Legal Theory."

Meet the Author

Brian Z. Tamanaha teaches law at St. John's University School of Law, New York City.

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