المساعد الشخصي الرقمي

مشاهدة النسخة كاملة : LEGAL THEORY Pragmatism and a Social Theory of Law



Hosam Hawamdeh
02-06-2010, 05:04 AM
BRIAN Z. TAMANAHA

OXFORD
UNIVERSITY PRESS
==================


General Editor's Introduction
In earlier days, many of those who worked in the field of socio-legal
studies were perhaps less given to scholarly introspection than their col-
leagues located more centrally in some of the fields of social science or
philosophy. One reason for this may have been the heavy imprint left
upon the field in its formative years by those who held a very intrumen-
tal view of law, and who were interested in conducting empirical research
for the purpose of law reform or to contribute to the development of
social policy. One consequence of this approach was that there were until
quite recently relatively few programmatic analyses of the socio-legal field,
its paradigms, its key questions and assumptions, its direction, and so on.
But as the field of socio-legal studies has moved from its place in the 1970s
as a rather offbeat pursuit on the fringes of conventional legal scholarship
to its current position of orthodoxy, so it has begun to enter a more reflec-
tive and questioning phase. Some commentators, indeed, have already
written of a crisis in socio-legal scholarship.
Brian Tamanaha's provocative book explores the present position of
socio-legal studies, and presents a large-scale and fundamental reap-
praisal of socio-legal theory. The work argues for the development of a
pragmatic realist approach to theory, drawing from behavioural and
interpretive positions in social science, and it in turn recruits the insights
of social science to revisit some of the major problems in legal theory.
Professor Tamanaha's analysis also serves as a critique of critical legal
theory, which the author regards as having been more of a force for
harm, rather than good. The programmatic analysis of this book serves
to complement the work of Roger Cotterrell, whose "Law's Community"
also appears in Oxford Socio-Legal Studies.
Professor Tamanaha makes a plea in this book for an approach to
the analysis of legal phenomena characterised by a commitment to
pragmatism. He argues also for more community of interest and com-
munication in socio-legal scholarship so that legal theory may be
informed more fully by socio-legal studies, so that socio-legal studies in
turn may be more fully informed by philosophy and legal theory, and,
finally, so that both legal theory and socio-legal studies may be better
informed by the practice of law.
Keith Hawkins




Contents

Foreword xi (http://www.questia.com/read/74505994)
1. Introduction: the Problematic State of Socio-legal Studies 1 (http://www.questia.com/read/74506000)
2. Pragmatism and Realistic Socio-legal Studies 26 (http://www.questia.com/read/74506025)
3. Behaviourism and Interpretivism in Complement 58 (http://www.questia.com/read/74506057)
4. An Analytical Map of the Concept of Law 91 (http://www.questia.com/read/74506090)
5. A Social Theory of Law by Comparison to Legal
Positivism 129 (http://www.questia.com/read/74506128)
6. The Internal/External Distinction and the Notion of a
'Practice' 153 (http://www.questia.com/read/74506152)
7. Studies of Judicial Decision-Making 196 (http://www.questia.com/read/74506195)
8. Legal Theory and the Practice of Judging 228 (http://www.questia.com/read/74506227)
Three Last Words 245 (http://www.questia.com/read/74506244)
Bibliography 257 (http://www.questia.com/read/74506256)





Foreword
To put it in the most ambitious terms, this book attempts to identify
and develop foundations for the social scientific study of law in the age
of anti-foundationalism. When reading legal theory, social theory, or
the philosophy of social science, it is easy to begin to feel as if every-
thing concrete is being destabilized, crumbling away before the corro-
sive onslaught of postmodernism. Nothing it seems is certain any more,
not truth, fact, objectivity, right and wrong, not even science, and cer-
tainly not law. However, once you put the theory book down and walk
on the hard ground, a sense of realism creeps back to suggest that there
must be something amiss with all this talk of no foundations since noth-
ing much seems to have changed in the real world. Everything is as
solid as it ever was. That, anyway, is what I hope to demonstrate in a
philosophically and empirically sound way.
Throughout this book I pursue three distinct, interwoven aims. My
first aim is explicity programmatic: to present in comprehensive form a
realistic approach to socio-legal studies. I build upon philosophical
pragmatism to lay an epistemological foundation which specifies the
nature of social science and its knowledge claims, and to establish a
methodological foundation which partakes of both behaviourism and
interpretivism. Owing to this objective, I engage in more detailed dis-
cussions of the philosophy of social science than is normal for a socio-
legal work, and certainly far more than usually appears in discussions
of legal theory.
My second aim is to bring an infusion into legal theory of insights
based upon social science. I attempt to carry out the social scientific
approach to law promoted by the Legal Realists, though I also add
insights about science which were not fully appreciated at the time they
wrote (and the answers provided are not always consistent with the
views espoused by the Realists). This aim shaped the structure and con-
tent of this book. Except for the Introduction and Chapter Three, each
Chapter is built around questions which occupy legal theory. This is an
attempt to reach legal theory from social science in a way that under-
stands and strives to respond to the issues which concern legal theory.
Socio-legal scholars insist upon the independence to explore their own
concerns without being dictated to by the interests of law or legal
theory. I try to bring the two fields closer together


These first two aims are joined in my presentation of the social
theory of law, a symbolic interactionist-based view of law which serves
as a common analytical baseline for socio-legal studies and legal theory.
I apply the social theory of law to offer answers to many of the core
issues in jurisprudence, including: what is law? what is law's relation to
society? what is the nature of legal positivism? is law indeterminate? is
law just politics? While I cannot claim to have conclusively resolved any
one of these questions, what I have done is show how they can be
approached and understood from a realistic, informed social science
perspective.
My third aim is to mount a response to the increasing influence of
the self-avowed critical school of socio-legal theory. I argue that this
critical approach is epistemologically unsound, potentially harmful to
the socio-legal enterprise, and does little to advance the political causes
critical scholars tout. Because my political views substantially overlap
with those of critical scholars, in this work I find myself in the uncom-
fortable position of being most critical of scholars for whom I have a
great deal of sympathy. But my conviction that the critical approach
does more harm than good for the political causes we share compels
me to present this response.
Chapter One is the Introduction, in which I briefly describe the intel-
lectual currents that surround the field of socio-legal studies, and I elab-
orate on the most prominent problems the field currently suffers from.
This Chapter will set the scene for the foundation laying to come. The
realistic approach I elaborate will respond to the problems that dog the
field.
Chapter Two establishes the theoretical foundation for realistic socio-
legal studies by laying out and then drawing upon philosophical prag-
matism. I discuss the current popularity of pragmatism in legal theory,
and I use pragmatism and its connections to Legal Realism to locate
the position of socio-legal studies in relation to the current schools of
legal theory, especially Critical Legal Studies and Law and Economics.
An important aspect of this discussion will be to ground the fact-value
distinction in the only way it can be understood consistent with post-
modernism.
Chapter Three discusses behaviourism and interpretivism, with their
respective emphases on behaviour and meaning, as they have been
invoked in legal theory and socio-legal studies. A realistic approach
draws equally from both, though that is easier said than done since so
much of their past interaction has been antagonistic. I articulate the







strengths and weaknesses of each, demonstrating how they each pre-
suppose and need the other. Complex issues surrounding the notion of
meaning and its relationship to behaviour will be taken up in detail.
Chapter Four deals with the age old issue at the centre of legal
theory, the question of the concept of law, which I approach from the
social science perspective rather than legal theory. I provide an expla-
nation for why the attempt to locate a universally acceptable concept
of law has proven so elusive. Using studies of law from legal anthro-
pology and legal sociology, especially those informed by behaviourism,
I set out two fundamental categories of the concept of law, then I map
the relations between these categories. The end product is an overview
not just of the concept of law but of law's relationship to society.
Chapter Five develops what I call a social theory of law, set out by
comparison to legal positivism. Socio-legal scholars have traditionally
been opposed to legal positivism. But I will build upon the fact that
these approaches share a common reference to social practices to join
the two in their view of law. To accomplish this, I demonstrate the ways
in which H. L. A. Hart's legal positivism is normative despite his claims
that it is descriptive, and I argue that a strict legal positivism would be
grounded in the social theory of law I set out. The social theory of law
serves as the backdrop for the remainder of the book which develops
different aspects of this theory in greater detail in relation to issues of
particular concern for legal theory.
Chapter Six discusses the internal-external distinction and the notion
of a practice. Although its significance has yet to be widely recognized,
the internal-external distinction is becoming increasingly pivotal in legal
theory. This poorly understood distinction--which is a function of the
interpretivism-behaviourism divide--can be fully apprehended only by
returning to its source of origin in the philosophy of social science. In
the course of this discussion I indicate how the issue of indeterminacy
arises in the social science context. I develop the notion of a practice,
which serves as an activity-based linch pin for the internal-external dis-
tinction. Then I analyse various issues in which the distinction is impli-
cated, both in legal theory and in socio-legal studies.
Chapter Seven examines behaviourist and interpretivist social sci-
entific studies of judicial decision-making, comparing them with
accounts by judges and observations by legal theorists. I set up the dis-
cussion in terms of the central obsession of US legal theory: the issue
of the indeterminacy of rules as it relates to the practice of judging. A
wealth of studies have been conducted on judicial decision-making, but




they have never been systematically examined for what they say to the
legal theory debate. That is what I do in this and the following Chapter.
These Chapters are intended to demonstrate, through application, the
value of the general approach I prescribe.
Chapter Eight draws upon the findings of the social scientific studies
of judging, as well as upon accounts by judges and legal theorists, to
formulate a portrait of judicial decision-making. The findings extend
beyond the issue of indeterminacy to suggest that judicial decision-
making (in the United States) has changed in the last hundred years,
and that the implications of this change, which involve a shift in the
balance between rule application and instrumental rationality, must be
taken notice of and more carefully attended to.
In the final Chapter I begin by pointing out the strengths and weak-
nesses of the pragmatic approach as revealed in this sustained applica-
tion of pragmatism to law and to the social scientific study of law. Then
I conclude with a final word on each of the three themes woven
through this work.
The genesis of many of the ideas elaborated in this work can be
traced back to my experience as a practising lawyer, first as a law clerk
to a federal judge in Virginia, then as a public defender in Hawaii, and
finally as a assistant attorney-general in Micronesia. My experience in
Micronesia, in particular, led me to question everything I had learned
about law from legal theory. Almost none of it seemed to fit. The quest
to understand the situation led me on an intellectual journey through
'law and the social sciences', where I found a wealth of information
(especially in the older works), of which legal theorists seemed generally
unaware. Legal theory needs to be more fully informed by socio-legal
studies, and that is what I have set out to do.
However, in the course of this intellectual journey, which extended
beyond law and the social sciences to delve deeply into the philosophy
of social science, and into philosophy and social theory, I also became
increasingly aware of the limitations of socio-legal studies. In particu-
lar, notions of truth and meaning are implicitly or explicitly relied
upon, yet they remain poorly developed; under pressure from post-
modernism, the field seems to be moving away from its strength in
social science, toward an embrace of politics; and, broadly speaking, the
field reflects a limited understanding of, and failure to engage, legal
theory. The field of socio-legal studies needs to be more fully informed
by philosophy and legal theory, and that is also what I have set out to
do.




Finally, in this search for answers I was struck by the fact that,
despite their differences, both legal theory and socio-legal studies share
one trait: neither strongly resonated with my experience of law. Both
fields often seemed unrealistic, out of touch. Although 'realism' has sev-
eral technical usages which I later identify, plain everyday realism is the
dominant sense in which I apply this term. In this work I approach
legal theory and socio-legal studies from a realistic perspective, close to
and informed by the practice of law. Both fields, I argue and attempt
to demonstrate, would benefit from a correction in this direction.
Although this book was conceived and written as a single continuous
text, modified versions of several Chapters were extracted and pub-
lished separately. A version of Chapter Two will appear in "Prag-
matism in United States Legal Theory: Its Application to Normative
Jurisprudence, Sociolegal Studies, and the Fact-Value Distinction," 41
American Journal of Jurisprudence (forthcoming 1996); a version of Chapter
Four appeared in "An Analytical Map of Social Scientific Approaches
to the Concept of Law," 15 Oxford Journal of Legal Studies 501 ( 1995); and
a version of Chapter Six appeared in "The Internal/External
Distinction and the Notion of a 'Practice' in Legal Theory and
Sociolegal Studies," 30 Law and Society Review 163 ( 1996). I thank the
publishers for allowing me to use material from those articles.
For their critical comments on earlier drafts of various Chapters of
this book, I would like to thank John Eekelaar, Lawrence Friedman,
Donald Black, Gordon Woodman, Andre Hoekema, Roger Cotterrell,
Keith Hawkins, Mark Cooney, David Gregory, Elizabeth van
Schilfgaarde, and the anonymous reviewers of Oxford University Press.
I would also like to thank Keith Hawkins for his help during the edi-
torial process, and Laura Aglietti for her meticulous research assistance.
Finally, I would like to give a special thanks to Lawrence Friedman,
Roberto Unger, Morton Horwitz, and John Leubsdorf. Without their
support, I would not have had the opportunity to embark upon an aca-
demic career, and this book would not have been written.



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