A Post-Westphalian Conception of Law

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A Post-Westphalian Conception of Law Brian Tamanaha, A General Jurisprudence of Law and Society. New York: Oxford University Press, 2001. xx + 263 pages. $60.00 cloth; $22.95 paper.

The discipline of law is becoming more cosmopolitan, partly because of "globalization." Jurisprudence, as the theoretical part of law as a discipline, has begun to respond to this challenge. During most of the twentieth century, mainstream Anglo-American jurisprudence focused almost entirely on two forms of law: municipal law (of sovereign nation-states and subordinate legal orders) and public international law (largely but not exclusively treated as the law governing relations between states). From a global or a broad transnational perspective this "Westphalian" focus is inadequate.1 It leaves out too much: if one were to try to sketch a broad overview of forms of legal orders in the contemporary world, one might quibble about including lex mercatoria or his humanitatis or Pasagarda law or Gypsy law or Hindu law or Internet law (GLT; Santos 1995, 2002), but it would be difficult to justify leaving out European Community law or Islamic law or major examples of "traditional" or "chthonic" law.2 Yet it would be strange to try to subsume all of these under municipal law or public international law. (GLT:chs. 3, 9) If one were to adopt an historical perspective, other candidates would press for attention, for example, classical Roman law, the medieval law merchant, canon law, to say nothing of major traditions of religious, indigenous, and chthonic law. This is not merely or mainly a semantic issue; rather it involves a judgment about what forms of legal ordering deserve sustained attention by our discipline.

Mainstream Westphalian legal theory does not seem to be well equipped to answer some important questions about the juridical status of particular legal orders. For example, what is the juridical status of EC law, contemporary Islamic law, lex mercatoria? Is human rights law merely part of public international law? Can one claim to understand law in Brazil if one ignores the internal ordering of the squatter settlements, made famous by Santos's account of "Pasagarda law" (Santos 1995:ch. 3, 2002:ch. 4)? Are these all "law" in the same sense? It is tempting to try to brush aside such questions as semantic, or trivial, or aridly conceptual, but it is difficult to escape from them completely.

The purpose of this essay is to consider one of the first attempts to confront the problems of theorizing about law at a global or broad transnational level in response to the challenges of "globalization."3 Brian Tamanaha's A General Jurisprudence of Law and Society is bold, ambitious, radical, and challenging. My object is to summarize its central theses, to indicate why I think that this is an important work, to sketch some differences in our perspectives and positions, and to suggest some areas that are in need of development. I shall follow the order of the book, focusing on a few themes rather than trying to follow all of the ramifications of a rich and complex argument. The first section sketches Tamanaha's background, concerns, and conception of his enterprise. The next section considers his critique of "mirror theories" and "the social order thesis." Next, I shall consider how he pares down Hart's model of law to produce a nonessentialist, nonfunctionalist "core concept of law."4 Rather than dwell on his interpretations of Hart and other thinkers, I shall focus on the clarity and tenability of Tamanaha's own position, especially in regard to his attempt to construct a core concept of law on the basis of folk concepts. Finally, I shall suggest some ways of extending or refining his analysis in respect of "globalization" and "general jurisprudence," "bottom-up perspectives on law," and normative and legal pluralism. Tamanaha's and my own views are quite similar and seem to be converging. As we proceed, I shall indicate some points of divergence in our enterprises and positions, but the main objective here is to clarify and assess Tamanaha's central theses. …