A Realistic Theory of Law

Let’s get realistic: the law doesn’t operate in a vacuum. Professor Brian Z. Tamanaha’s latest book, A Realistic Theory of Law (Cambridge University Press, 2017), attempts to make that clear.

“Jurisprudence in recent decades has become increasingly abstract, specialized, and narrow,” writes Tamanaha in the introduction. A theory of law should be grounded in empirical research that focuses on the actions and consequences of law, he argues, “rather than on intuitions, thought experiments, and musings about all possible worlds.”  The dual objectives of this book, he observes, are to “articulate a realistic theory of law, and more generally to demonstrate the significance to jurisprudence of theories that center on law and society.”

The book “shows flaws and gaps in existing theories of law,” especially analytical jurisprudence, which purports to produce universally true concepts of law detached from history and society. To counter these theories, he revives long dormant positions within historical and sociological jurisprudence to construct a modern branch of jurisprudence that Tamanaha calls social legal theory.

Tamanaha, the William Gardiner Hammond Professor of Law, treats law holistically. He shows how law has evolved in connection with social, cultural, economic, political, ecological, and technological factors. He traces the development of law from hunter-gatherers, to chiefdoms, to early civilizations, to empires, to modern states and contemporary transnational law. As society grew more complex, the law developed with it. Applying this perspective, he addresses central theoretical issues, including: What is law? What does law do in the modern state? What is international law? And more.

“Law has roots planted in the history of a society, develops in social soil alongside other social and legal growths, tied to and interacting with surrounding conditions,” he writes. Since “existence is continually evolving,” some “legal manifestations develop and evolve, while others whither or are absorbed or supplanted.” This social historical process has resulted in the presence of multiple forms of law, including state law, religious law, customary law, and international law.

This is Tamanaha’s ninth book; his books have been published by the university presses of Oxford, Cambridge, Princeton, and Chicago. Three of his books have earned awards, including A General Jurisprudence of Law and Society (2001), which won a prize in legal theory and a prize in law and society. On the Rule of Law (2004) has been translated into six languages, and altogether his publications have been translated into nine languages.

Tamanaha has delivered eight endowed lectures, including the prestigious Kobe Memorial Address in Tokyo and Julius Stone Address in Sydney. He has taught Jurisprudence, Law and Society, Torts, Legal Profession, and Comparative Law, and has twice been selected Professor of the Year by students. In 2013, a poll of 300 law deans and professors across the country voted Tamanaha the Most Influential Legal Educator for his critical examination of legal academia in Failing Law Schools (2012).