Brian Tamanaha's latest book is another important contribution to jurisprudence and social theory. It is erudite and carefully argued. The book has two main goals: destructive and constructive.
Let us begin with the destruction. According to Tamanaha, and marshaling considerable evidence, the two dominant schools of contemporary jurisprudence, the natural law school and the positivists, both make universalist claims as to what law is (57–73). Such claims, Tamanaha argues, are not tenable. Most obviously, they tend to be underinclusive (46–48). For instance, positivist definitions of law, following the seminal work of H.L.A. Hart, define law in part as a system of primary rules governing social intercourse. Yet much law is not comprised of such rules; a helpful example is acts that enable administrative agencies or the creation of corporations (46, 129–30). Perhaps surprisingly, Tamanaha also finds Hart-inspired positivist approaches that emphasize law as a system of rules to be over-inclusive. This is because there are many systems of rules—the rules of baseball or a university—that are not law, but that would seem to be the right kind of system to be law (48–51).
At this point, there is a clear objection to Tamanaha's critique, which is how he knows what law is such that standard positivist definitions miss the mark. In response, Tamanaha claims that the proper starting point for jurisprudence is what, as a matter of convention, people consider law, and thus considering customary law, but refusing to consider baseball to be law is entirely appropriate (52).
Here too there is a clear counter, namely that this appeal to convention is ad hoc. To this, again, Tamanaha has strong answers. First, the traditional positivist, such as Hart, must also start from an intuition as to what law is before developing the concept of law, and so Tamanaha's method is not really different in kind and is, actually, more rigorous because it is grounded in social science (82). Second, Tamanaha argues that the notion of what people take to be law is a lot richer than just taking a public opinion survey. Building on the work of Searle, law is a social institution and, as such, is the product of group recognition. Social institutions are constitutive of the social world and make more specific legal rules possible (51–53).
Tamanaha's positive theory of law builds from the multiple roles the social institution of law actually plays and has played - roles that have changed over time (194–95). There are a lot of moving pieces here, but I would sketch the core positive claims as follows. Traditional jurisprudence has started from intuitions about state law as opposed to the kinds of law that predated states and are currently important even in a world with states. To demonstrate the weakness of the traditional approach and the strength of his own, Tamanaha races through a genealogy of law through time in order to illustrate the poverty of starting with vague folk intuitions about law. For example, many premodern legal regimes did not have institutions dedicated to changing the law, contrary to a standard assumption derived from Hart (106). According to Hart, legal systems must respond to and enable broader societal change; for many traditional societies there was no need for a mechanism to change the law to adopt to new circumstances. Another important example involves colonial law, law that is alien, coercive and devoid of “inherent moral purpose” (103–04). Furthermore, and perhaps most damning, is that the traditional jurisprudential theories focus on a small slice even of modern state law. As noted above, modern state law typically contains numerous laws directed towards arranging itself, protecting itself and advancing other goals (127).
Tamanaha's final chapter discusses international law and performs a kind of Wittgensteinian therapy on the pseudoproblem of whether international law is really law. Once one understands that law has long been recognized to be more than the system of rules that (partially!) characterizes modern state law, then one understands that there is a body of transnational law that includes public international law, international commercial law, and much else.
A fine book provokes further discussion and I want to end this review essay with two related concerns—not critiques, but concerns.
Tamanaha recognizes that all theories—even his own—are situated (35). As I write this review in the winter of 2020, I think about new legal heroes such as Sally Yates, the DOJ attorneys who resigned in connection with the Roger Stone prosecution or the state and local Republican officials who chose not to undermine the 2020 election. To be sure, the aspects of the law that all of these actors upheld are arguably different along valuable lines that Tamanaha teaches us to recognize (e.g., social order v. government following its own rules). And yet what makes these actions praiseworthy strikes me as simpler, if not simple, and clearly related to—if not identical with—the concept of law, if a narrow concept of law, of the type celebrated by modern natural lawyers or positivists. It reminds me of Berlin's famous deployment of Archilochus's famous line about the hedgehog and the fox. Tamanaha knows many things, but it is also powerful to know one thing, if it is the right thing.
And this brings me to a concern about research agenda. Reading Tamanaha, one might get the impression that contemporary Anglo-American jurisprudence has been operating in a vacuum, isolated from the messy world of the law that is the bread and butter of readers of the Law and Society Review. Whether true of the past or not, it is not necessarily the case now and need not be for the future. Groundbreaking work can be done through the interaction of dry theory and knowledge of the law beyond modern state law. I will offer an example I am familiar with: work done on the law of ancient Greece, particularly classical Athens.
At first blush, the work done on Athenian law would seem to confirm the limits of the dominant schools of Anglo-American jurisprudence. For almost two centuries, the legal system of the Athenian democracy managed to function well enough not only to sustain hundreds of thousands of people who were dependent on trade with others, but to sustain them at a very high level of flourishing according to objective criteria (Reference OberOber 2008). This legal system achieved this with very little written law, no formal lawyers and certainly no judges. So much for positivism and rule-based systems.
And yet. There was a system of informal norms that were enforced by the courts—and were seen to be enforced by the courts—in just the way a formal model suggests would be sufficient to have something resembling the rule of law (Reference Hadfield and WeingastHadfield and Weingast 2012; for application to Athens, see Reference Carugati, Hadfield and WeingastCarugati et al. 2015). And, indeed, the Athenian system so understood would seem to have had, beneath the surface, the very formal features identified by traditional jurisprudential thinkers like Fuller or Raz. Perhaps most important is the work being done on the relation of this kind of law to politically and economically open forms of social organization. Having everyone play by the same rules seems to be co-constitutive with political and economic freedom (Reference North, Wallis and WeingastNorth et al. 2009). It is precisely because Tamanaha is so convincing that there is a contingent connection between law and moral aims that it is worthwhile to stop and think hard when law and morality are somewhat congruent.
I could not cash out such big claims in twenty reviews, but I flag them here in conclusion because I want to emphasize that I think the most profound lesson of this book is not that traditional analytic jurisprudence should be ignored, but that it should be brought out of its silo. Indeed, and of course, Tamanaha makes a version of this point (66, 198), but it is not in the foreground and so my small criticism is that I think it should have been.
