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

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

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

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

Synopsis

Combining philosophical pargmatism with a methodological foundation, Tamanaha formulates a framework for a realistic approach to socio-legal theory. The strengths of this approach are contrasted with that of the major schools of socio-legal theory by application to core issues in this area. Thus Tamanaha explores the problematic state of socio-legal studies, the relationship between behaviour and meaning, the notion of legal ideology, the problem of indeterminacy in rule following and application, and the structure of judicial decision making. These issues are tackled in a clear and concise fashion while articulating a social theory of law which draws equally from legal theory and socio-legal theory.

Excerpt

In earlier days, many of those who worked in the field of socio-legal studies were perhaps less given to scholarly introspection than their colleagues 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 intrumental 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 reflective 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 reappraisal 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 communication 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 . . .

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