The Third Pillar of Jurisprudence: Social Legal Theory

By Tamanaha, Brian Z. | William and Mary Law Review, May 2015 | Go to article overview

The Third Pillar of Jurisprudence: Social Legal Theory


Tamanaha, Brian Z., William and Mary Law Review


TABLE OF CONTENTS  INTRODUCTION I.    THREE NINETEENTH-CENTURY RIVALS II.   LAW AS A SOCIAL INSTITUTION III.  SOCIAL THEORY OF LAW AT THE CENTER OF HISTORICAL JURISPRUDENCE IV.   THE CONTINUITY OF SOCIOLOGICAL JURISPRUDENCE V.    SOCIAL THEORY OF LAW WITHIN LEGAL REALISM AND CONTEMPORARY LEGAL       THOUGHT VI.   SOCIAL LEGAL THEORY VII.  THREE CONTRASTING-COMPLEMENTARY ANGLES ON LAW VIII. "BUT IT'S NOT PHILOSOPHY OF LAW" IX.   WHY IT MATTERS 

INTRODUCTION

When contemporary legal theorists engage the question "What is law?" their analyses typically are framed in terms of a grand contest between legal positivism and natural law. In an encyclopedic entry on "The Nature of Law," Andrei Marmor observes:

   In the course of the last few centuries, two main rival    philosophical traditions have emerged, providing different answers    to [traditional] questions [regarding the nature of law]. The older    one, dating back to late mediaeval Christian scholarship, is called    the natural law tradition. Since the early 19th century, Natural    Law theories have been fiercely challenged by the legal positivism    tradition promulgated by such scholars as Jeremy Bentham and John    Austin. (1) 

A recent text entitled The Nature of Law covers only the debate between natural lawyers and legal positivists. (2)

These two hold pride of place in standard accounts of jurisprudence, (3) standing above an unruly jumble of other theoretical approaches. (4) A common arrangement in jurisprudence texts is to begin with natural law and legal positivism, in that order, followed by legal realism, and then a host of contemporary schools of thought. (5) This ordering is chronological as well as thematic: natural law theory began in classical times; (6) legal positivism arose in the nineteenth century to challenge natural law; (7) legal realism arose in the 1920s and 1930s to debunk formalist views of law; (8) the Hart-Fuller debate of the late 1950s marked the reenergizing of legal positivism; (9) and in the 1970s, Dworkin challenged Hart's dominance, (10) law and economics examined law from an economic perspective, (11) and critical legal studies of the radical left attacked mainstream legal liberalism. (12) Now we have a hodge-podge of descendants or variations of these schools, with natural law and legal positivism enjoying prominence above all others.

A third major pillar of jurisprudence exists, I argue in this Article, and has existed for several centuries as a rival to natural law and legal positivism, though it goes mostly unrecognized today owing to the vagaries of labeling and intellectual fashion. (13) Despite lacking an acknowledged name and identity, several of the core propositions of this theoretical stream are now virtually taken for granted--a remarkable achievement for a theoretical perspective on law that remains all but invisible.

Contrary to what the title might suggest, it is not my contention that every existing legal theory can be squeezed into one of these three jurisprudential approaches; nor do I claim that this is the only way to categorize current theories about law. (14) My claims are more limited: this third theoretical stream constitutes a long-standing and coherent alternative to natural law and legal positivism and the theoretical discussion of law will benefit from recognizing it as such. (15) Recognition of this third branch of jurisprudence will create a framework that facilitates the incorporation of insights currently at the margins of discussions of the nature of law, including insights about legal institutions, legal functions, legal efficacy, legal change, legal practices, legal development, legal pluralism, legal culture, and more. (16) This jurisprudential tradition, labeled "social legal theory" for reasons that will become evident, is characterized by a consummately social view of the nature of law. (17)

I. THREE NINETEENTH-CENTURY RIVALS

I will first attempt to loosen the grip of conventional assumptions by noting that legal theorists a century ago would have been surprised by Marmor's identification of only two great jurisprudential rivals and also by the prominence he accords to natural law. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

The Third Pillar of Jurisprudence: Social Legal Theory
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.