Wednesday, June 28, 2017

A Realistic Theory of Law

Brian Tamanaha

At any time, but particularly in critical times like these, it can be useful to step back and take a clear-eyed historical view of the development of law. My new book, A Realistic Theory of Law, presents law as complex of social institutions that develop in relation to surrounding factors. Chapter Five, Law in the Age of Organizations, is particularly relevant to contemporary events. Therein I distinguish three government uses of law: to maintain government power, to structure and carry out internal operations, and to pursue initiatives and achieve objectives in the social arena. These government uses, I assert, "are influenced by people occupying offices with their own interests, ideas, and objectives, as well as externally by interests seeking to control or shape the activities and objectives they carry out." Here is the Cambridge description of the book:
This book articulates an empirically grounded theory of law applicable throughout history and across different societies. Unlike natural law theory or analytical jurisprudence, which are narrow, abstract, ahistorical, and detached from society, Tamanaha's theory presents a holistic vision of law within society, evolving in connection with social, cultural, economic, political, ecological, and technological factors. He revives a largely forgotten theoretical perspective on law that runs from Montesquieu through the legal realists to the present. This book explains why the classic question 'what is law?' has never been resolved, and casts doubt on theorists' claims about necessary and universal truths about law. This book develops a theory of law as a social institution with varying forms and functions, tracing law from hunter-gatherer societies to the modern state and beyond. Tamanaha's theory accounts for social influences on law, legal influences on society, law and domination, multifunctional governmental uses of law, legal pluralism, international law, and other legal aspects largely overlooked in jurisprudence.
As a side note, the cover images were drawn by my artist daughter. It is my first book with a cover that conveys the content.

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