A Realistic Theory of Law: A New Book From Brian Z. Tamanaha

Brian Z. Tamanaha, Washington University, St. Louis, has published A Realistic Theory of Law (Cambridge University Press, 2017). Here from the publisher's website is a description of the book's contents.

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.

Presents the only contemporary version of a holistic theory of law within society

An excellent resource to learn a great deal about legal theory from a social scientific perspective

Traces the development of law and society, providing an account of the transformation of modern law.

Call For Papers: Mimesis on Trial @OxfordCEMS

From the Centre for Early Modern Studies, via @ChloeJSKennedy

Call for Papers: Mimesis on Trial

Merton College, Oxford
20 May 2017
What is the connection between verisimilitude as a literary device and its legal use in the credible narration of facts? How do we construe the relation between the marvellous and the probable? What do early modern notions of likelihood and verisimilitude look like, if accounts of real-life criminal trials cite miracles and divine interventions as discoverers of the truth? Early modern Europe saw new modes and criteria of evidence-evaluation emerge, as new criminal codes and judicial systems were established. How has the work of social historians, directing us to ‘fiction in the archives’ affected how literary critics see the shaping of probability – of discoveries, denouements, trial outcomes – in early modern prose fiction and drama? How does recent scholarly work on the importance of oaths and binding language, on witness credibility, on inquisitions, jury trials, on the rhetorical criteria of suspicion and on the circulation of news affect current thinking about literary and dramatic narrative? Can we revisit, in this context, Auerbach’s conception of Western literature’s achievement as supremely mimetic, as representing ‘the entire human individual’?

The Centre for Early Modern Studies at the University of Oxford invites proposals for 20-minute papers on topics that engage with the literary-critical history of mimesis, and/or with questions of likelihood, verisimilitude, proof and probability in literary or legal texts of the early modern period. Papers are welcome on English or European materials, on prose fiction, on drama, on legal cases, and from all disciplinary perspectives.

Please send abstracts of up to 300 words and a brief biography to natasha.simonova@ell.ox.ac.uk by 15 March 2017.

Garcia-Villegas on A Comparison of Sociopolitical Legal Studies

Mauricio Garcia-Villegas, Sr., University of Wisconsin, Platteville, has published A Comparison of Sociopolitical Legal Studies at 12 Annual Review of Law and Social Science 25 (2016). Here is the abstract.

This article compares sociopolitical perspectives about the law in three regions of the world: the United States, France, and Latin America. Despite their heterogeneity, these sociolegal perspectives share many practical and theoretical similarities. For this reason, this article proposes grouping them under the more general title of sociopolitical legal studies (SLS). This general label includes a collection of transdisciplinary research, theories, and studies that view law as a sociopolitical phenomenon central to the understanding of power and society. The concept of SLS reveals the existence of a transversal ground between three academic disciplines: sociology of law, legal theory, and sociolegal studies, which, in spite of multiple connections, rarely communicate with one another. Additionally, the term studies is used in a broad sense, including not just legal theories but also empirical analyses of the law.

The full text is not available from SSRN.

Schauer on Law's Boundaries

Frederick Schauer, University of Virginia School of Law, is publishing Law's Boundaries in the Harvard Law Review. Here is the abstract.

What counts as law? What sources qualify as legitimate inputs to legal argument and legal decision-making? In this article, written as an invited contribution to the Harvard Law Review’s symposium issue commemorating the Harvard law School’s 200th anniversary, I use these questions to track one central strand of 200 years of jurisprudence. The analysis is episodic more than comprehensive, and the episodes are all ones with some connection, at times close and at times loose, to the Harvard Law School. But the basic theme of what counts as a valid legal source and thus of what counts as law also provides insights into two centuries of debate about the nature of law and the nature of jurisprudential inquiry.

Download the article from SSRN at the link. 

Arapinis and Condello on The Intentionality Behind Legal Concepts and Their Extensional Boundaries

Alexandra Arapinis, Laboratory for Applied Ontology (ISCT-CNR), and Angela Condello, University of Rome III, Department of Law, have published The Intensionality Behind Legal Concepts and Their Extensional Boundaries: Between Conventionalism and Interpretivism at 29 Ratio Juris 439 (2016). Here is the abstract.

This article constitutes an attempt to reexamine a crucial issue of legal theory from the perspective of philosophy of language and of social ontology: by analyzing a jurisprudential case recently decided by the U.S. Supreme Court, we explain how Searle's account on rules in The Construction of Social Reality constitutes an important starting point for the clarification of the old jurisprudential debate between conventionalism and interpretivism. In a nutshell, we show that Searle's framework, while strictly conventionalist, makes it possible to conceive of the distinction between the semantic content of rules (their intended purpose) and their extension, by drawing a parallel with the idea of “deep conventions” (and “essential rules”) as well as with the semantic conventions in natural language. The paper thus touches on the broader problem of the relations between legal concepts and nonlegal values (law and morality).

The text of the article is not available from SSRN.

New From Hart Publishing @hartpublishing: Law In Theory and History, Edited by Maks Del Mar @maksdelmar and Michael Lobban @LSELaw

New from Hart Publishing: Law in Theory and History: New Essays on a Neglected Dialogue (Maksymilian Del Mar and Michael Lobban eds., Hart Publishing, 2016). Here from the publisher's website is a description of the book's contents.

This collection of original essays brings together leading legal historians and theorists to explore the oft-neglected but important relationship between these two disciplines. Legal historians have often been sceptical of theory. The methodology which informs their own work is often said to be an empirical one, of gathering information from the archives and presenting it in a narrative form. The narrative produced by history is often said to be provisional, insofar as further research in the archives might falsify present understandings and demand revisions. On the other side, legal theorists are often dismissive of historical works. History itself seems to many theorists not to offer any jurisprudential insights of use for their projects: at best, history is a repository of data and examples, which may be drawn on by the theorist for her own purposes. The aim of this collection is to invite participants from both sides to ask what lessons legal history can bring to legal theory, and what legal theory can bring to history. What is the theorist to do with the empirical data generated by archival research? What theories should drive the historical enterprise, and what wider lessons can be learned from it? This collection brings together a number of major theorists and legal historians to debate these ideas.

 

Manko on Ideology and Legal Interpretation: Some Theoretical Considerations

Rafał Mańko, University of Amsterdam, Centre for the Study of European Contract law (CSECL), has published Ideology and Legal Interpretation: Some Theoretical Considerations in 1 Constitutional Values in Contemporary Legal Space 117 (Kalvis Torgāns et al., Riga 2016). Here is the abstract.

The aim of the present paper is to analyse the actual role of ideology in legal interpretation from the perspectives of legal theory, philosophy of law and theoretical sociology of law. Due to the unavoidable indeterminacy of legal language and the impossibility to predict all potential future situations at the stage of creating legal norms by the legislator, legal interpretation always involves a certain degree of discretionality on the side of the interpreter who fills in the gaps left by the legal materials by solutions consistent with that ideology.

Download the essay from SSRN at the link.

Bianchi @IHEID on International Law Theories: An Inquiry Into Different Ways of Thinking (Oxford, 2016)

Via @maksdelmar:

Andrea Bianchi, Professor of International Law, The Graduate Institute, Geneva, has published International Law Theories: An Inquiry into Different Ways of Thinking (Oxford University Press, 2016). Here is a description of the book's contents from the publisher's website.

Two fish are swimming in a pond. "Do you know what?" the fish asks his friend. "No, tell me." "I was talking to a frog the other day. And he told me that we are surrounded by water!" His friend looks at him with great scepticism: "Water? What's that? Show me some water!" This book is an attempt to stir up 'the water' the two fish are swimming in. It analyses the different theoretical approaches to international law and invites readers to engage with legal thinking in order to familiarize ourselves with the water all around us, of which we hardly have any perception. International lawyers and students of international law often find themselves focused on the practice of the law rather than the underlying theory. The main aim of this book is to provide interested scholars, practitioners, graduate, and postgraduate students in international law and other disciplines with an introduction to various international legal theories, their genealogies, and critique. By providing an analytical approach to international legal theory, the book encourages readers to sharpen their sensitivity to these different methodologies and to consider how the presuppositions behind each theory affect analysis, research, and practice in international law. Theories of International Law is intended to assist students, scholars, and practitioners in reflecting more generally how knowledge is formed in the field.

 

A New Book on Crime Fiction and the Law, edited by Maria Aristodemou @maariaris, Fiona Macmillan, and Patricia Tuitt

Another interesting book due out next month from Routledge:

Crime Fiction and the Law (Maria Aristodemou, Fiona Macmillan, and Patricia Tuitt, eds., 2016). Here is a description of the book's contents from the publisher's website.

This book opens up a range of important perspectives on law and violence by considering the ways in which their relationship is formulated in literature, television and film. Employing critical legal theory to address the relationship between crime fiction, law and justice, it considers a range of topics, including: the relationship between crime fiction, legal reasoning and critique; questions surrounding the relationship between law and justice; gender issues; the legal, political and social impacts of fictional representations of crime and justice; post-colonial perspectives on crime fiction; as well as the impact of law itself on the crime fiction’s development. Introducing a new sub-field of legal and literary research, this book will be of enormous interest to scholars in critical, cultural and socio-legal studies, as well as to others in criminology, as well as in literature.

Forthcoming from Routledge: Julia Shaw on Law and the Passions (2017)

Forthcoming from Routledge:

Julia Shaw, Law and the Passions: A Discrete History (2017). Here is a description of the book's contents from the publisher's website.

Although the connection of law, passion and emotion has become an established focus in legal scholarship, the extent to which emotion has always been, and continues to be, a significant influence in informing legal reasoning, decision-making, decision-avoidance and legal judgment – rather than an adjunct – is still a matter for critical analysis. Engaging with the underlying social context in which emotional states are a motivational force – and have produced key legal principles and controversial judgments, as evidenced in a range of illustrative legal cases – Law and the Passions: A Discrete History provides a uniquely inclusive commentary on the significance and influence of emotions in the history and continuing development of legal institutions and legal dogma. Law, it is argued, is a passion; and, as such, it is a primarily emotional endeavour.

Stern @ArsScripta on Coke's Institutes and the Epistemology of the String Cite

Simon Stern, University of Toronto Faculty of Law, has published Margins of Authority: Coke's Institutes and the Epistemology of the String Cite. Here is the abstract.

Precedential authority has an important place in doctrinal explication and analysis in Anglo-American law. Efforts to manage these precedents visually, in the sixteenth- and seventeenth-century England, display a variety of solutions to the question of where precedents belong and how to represent them. Sir Edward Coke’s approach, in his Institutes (1628-44), was to place the citations in the margin; this way of managing textual authority connected legal concepts in a way that lent new significance to the citations. The discussion examines this development by considering it in relation to the introduction of perspective in visual art, in the early fifteenth century, and the use of infinitesimals in the new mathematics of the early seventeenth century.

Download the article from SSRN at the link.

Tamanaha on How History Bears on Jurisprudence

Brian Z. Tamanaha, Washington University, Saint Louis, School of Law, is publishing How History Bears on Jurisprudence in Law in Theory and Jurisprudence (Maks Del Mar and Michael Lobban eds.; Oxford: Hart Publishing 2016). Here is the abstract.

The relevance of history to jurisprudence is a burning topic of late, the focus of a forthcoming book, Law in Theory and Jurisprudence, as well as of a recent symposium issue in the Virginia Law Review, “Jurisprudence and (Its) History,” both with contributions from eminent historians and theorists. That jurisprudence neglects history to its impoverishment is the thrust of these collections. The editors for the Virginia symposium write, “there may be reason to think that turning to history could broaden the boundaries, and raise the ambitions, of a [jurisprudential] field that many lawyers, judges, and even legal scholars have written off as esoteric and dominated by concerns remote from their own.” This essay, the Afterword to the former volume, examines how history bears on jurisprudence. The presentation is organized around the following themes that emerge from the collection: Law is historical or temporal; Law and jurisprudence interact over time; Jurisprudence is influenced by social-historical circumstances; Historical jurisprudence; Must legal philosophy be historical? (No); Should legal philosophy be historical? (Yes).

Download the essay from SSRN at the link.

Manko on Fantasies of Selfhood in Legal Texts

Rafał Mańko, University of Amsterdam, Centre for the Study of European Contract law (CSECL); European Parliamentary Research Service, has published 'Reality is for Those Who Cannot Sustain the Dream': Fantasies of Selfhood in Legal Texts as 5 Wroclaw Review of Law, Administration, and Economics 24 (2015). Here is the abstract.

Confronting the law as a form of ideology is not an easy task, especially for lawyers very strongly attached to the internal point of view as part of their professional habitus. Despite this difficulty, the present paper aims at contributing to the ideological demistification of law by proposing to apply Slavoj Žižek’s critique of ideology to the legal field. In particular, the paper elaborates a specific methodology of subjecting legal texts to a critique of ideology by way of identifying the symptoms, i.e. points of breakdown of the ideological field which are simultaneously necessary for that field to achieve its closure. The paradox of symptoms is that they are inevitable for the ideological field, yet at the same time they undermine it, opening up a space for its critique. In this context, the aim of this paper is to confront the fundamental fantasies conveyed by legal ideology. The paper approaches ideological fantasies in strict connection with ideological interpellation, i.e. the process in which a human individual is transformed into a subject of ideology. Ideological interpellation of individuals into subjects is one of the chief operations of the law, which, in its current form, is based on the fundamental assumption that human beings are subjects of rights and duties. Directing the critique of ideology at legal texts aims at undermining the efficacy of the ideological grip held by the Symbolic order upon individuals by insisting on the classical Lacanian thesis that ‘the big Other does not exist’. On a practical level, critique of legal ideology performed by lawyers themselves can help to bring about a more reflexive approach to their participation in the principal practices of legal culture and can help to raise lawyers’ awareness regarding their role in society.

Download the article from SSRN at the link.

Turner @christor on Perceiving Law

Christian Turner, University of Georgia Law School, has published Perceiving Law as UGA Legal Studies Research Paper No. 2016-33. Here is the abstract.

The more we examine what is behind our most difficult legal questions, the more puzzling it can seem that we continue both to disagree strongly and, yet, to cooperate. If law is a reasoned enterprise, how is it that we are neither torn apart nor homogenized by our long social practice of it? I resolve this puzzle, and arrive at a richer understanding of law, using the idea of modeling familiar from the natural sciences and mathematics. I show both that theorists can model legal systems as abstract systems of institutions, information flows, and institutional processing or reasoning and that the participants in a legal system themselves maintain and evaluate models of this sort. Understanding law this way clarifies numerous problems ranging from pluralism to legal interpretation. This work emphasizes four major points of the theory: (1) An individual’s perception of law is an act of empathetic model-identification, model-building, and attitudinal judgment with respect to a perceived, ongoing instance of cooperation. (2) All such models can be described as systems of information-connected institutions that each (a) receive inputs from other institutions, (b) process those inputs according to sets of reasons, and (c) produce informational output. (3) Each institution is modeled by its participants as (a) maintaining its own set of reasons for decisionmaking, those reasons terminating in a local, ultimate rule of recognition but also (b) possessing rules that take account of the information produced by other institutions, such rules coming in various flavors of scrutiny and deference. (4) The human conceptual system generates many such models depending on the question being asked and produces judgments through simulation. The fact that such modeling happens at many different scales, depending on the question contemplated, explains theoretical disagreement and agreement, otherwise puzzling problems of pluralism, and the moral/legal interface.

Download the article from SSRN at the link.

Rosenbury @UFLawDean on Postmodern Feminist Legal Theory

Laura A. Rosenbury, University of Florida College of Law, is publishing Postmodern Feminist Legal Theory: A Contingent, Contextual Account in Feminist Legal Theory in the United States and Asia: A Dialogue (Cynthia Grant Bowman, ed.; 2016) (Forthcoming). Here is the abstract.

Of all of the existing schools of feminist legal thought, postmodern feminist legal theory is the most difficult to define and categorize. Postmodernism itself is not a fixed concept. Moreover, the various approaches to postmodernism challenge and resist attempts to establish foundational truths or universal meanings. Feminist legal theory rooted in postmodernism therefore necessarily eschews stable understandings of feminism, law, and theory in favor of understandings that are fluid and shifting. If one embraces these principles, any attempt to conceptualize postmodern feminist legal theory immediately becomes contingent and contextual, if not also suspect. This Essay nonetheless analyzes the ways that legal scholars in the United States have developed and deployed postmodern feminist legal theory over the past thirty years. In doing so, the Essay provides one approach to postmodern feminist legal theory rooted in context and time. The Essay also highlights some of the distinctive aspects of postmodern feminist legal theory in this time and location, situating it in relation to other schools of feminist legal thought. Finally, the Essay emphasizes why these distinctions matter by viewing two areas of feminist law reform through this conceptualization of postmodern feminist legal theory.

Download the essay from SSRN at the link.

"Paradise Lost" as a Discussion of Early Modern Legal Justice

Alison A. Chapman, Professor of English, University of Alabama, Birmingham, has published The Legal Epic: “Paradise Lost” and the Early Modern Law (Harvard University Press, 2016). Here is a description of the contents from the publisher's website.

The seventeenth century saw some of the most important legal changes in England’s history, yet the period has been largely overlooked in the rich field of literature and law. Helping to fill this gap, The Legal Epic is the first book to situate the great poet and polemicist John Milton at the center of late seventeenth-century legal history. Alison A. Chapman argues that Milton’s Paradise Lost sits at the apex of the early modern period’s long fascination with law and judicial processes. Milton’s world saw law and religion as linked disciplines and thought therefore that in different ways, both law and religion should reflect the will of God. Throughout Paradise Lost, Milton invites his readers to judge actions using not only reason and conscience but also core principles of early modern jurisprudence. Law thus informs Milton’s attempt to “justify the ways of God to men” and points readers toward the types of legal justice that should prevail on earth. Adding to the growing interest in the cultural history of law, The Legal Epic shows that England’s preeminent epic poem is also a sustained reflection on the role that law plays in human society.

Law and the Modern Mind

Concurring Opinions features discussion of a recent symposium centered on Susanna Blumenthal's Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (Harvard 2016).

Post here.

Hertogh and Kurkchiyan on the Existence of a Common European Legal Culture

Marc Hertogh, University of Groningen, Faculty of Law, and Marina Kurkchiyan, University of Oxford, Wolfson College, are publishing 'When Politics Comes into Play, Law is No Longer Law': Images of Collective Legal Consciousness in the UK, Poland and Bulgaria in volume 12 of International Journal of Law in Context (2016).

This paper examines the idea of a common European legal culture by exploring its foundational component, ‘collective legal consciousness’, in three EU states: the UK, Poland, and Bulgaria. Using a comparative research design and a variety of methods of data collection, it suggests that underneath the thin layer of EU consensus there are some fundamental differences in perceptions of law. The evidence shows that legal ideas are infused with perceptions of the political system. This finding suggests that the creation of a shared European legal culture depends on the prior formation of a common transnational polity right across the EU, together with a sense of political identity and of trust in the legitimacy of the European political authorities. The paper also demonstrates the multi-layered character of collective legal consciousness, allowing different images of law to coexist, underpinned by the perception of the source with which each image is associated.

Download the article from SSRN at the link.

Allen on Doctrine as a Disruptive Practice.

Jessie Allen, University of Pittsburgh School of Law, has published Doctrine as a Disruptive Practice as University of Pittsburgh Legal Studies Research Paper No. 2016-21. Here is the abstract.

This article proposes a different way to think about legal reasoning that focuses on its psychological effects rather than its ability to identify legal outcomes. Legal doctrine, such as statutes and case law, is generally thought to contribute to legal decision making only to the extent that it determines legal outcomes, or at least narrows the range of justifiable outcomes. Yet in many cases that come to court, the available authorities are acknowledged to be indeterminate. Over the course of decades, various theories and methods have been proposed to justify judges’ continued reliance on doctrine. Most of this literature focuses on doctrine’s capacity to direct substantive outcomes and ignores other benefits that doctrinal reasoning might provide. Recently, however, some empirical studies have begun to consider the potential cognitive effects of judges’ engagement with doctrine. This article offers another model for how doctrine might influence judges’ perceptions. Drawing on performance theory and recent psychological studies of readers, I argue that judges’ disciplined engagement with formal legal doctrine might have self-disrupting effects akin to those performers experience when they deliberately alter their physical and vocal habits. Investigating doctrine’s disruptive potential might help explain why judges continue to reason doctrinally despite doctrinal indeterminacy. The model of self-disruptive doctrine cannot explain how judges ultimately resolve, or should resolve, legal questions. But disruptive doctrinal effects would be valuable in and of themselves as a way for legal decision makers to set aside their usual subjective biases.

Download the article from SSRN at the link.

Michaels on Law and Recognition: Toward a Relational Concept of Law

Ralf Michaels, Duke University School of Law, is publishing Law and Recognition — Towards a Relational Concept of Law in Pursuit of Pluralist Jurisprudence (Nicole Roughan and Andrew Halpin eds., Cambridge University Press, forthcoming). Here is the abstract.

Law is plural. In all but the simplest situations multiple laws overlap — national laws, subnational laws, supranational laws, non-national laws. Our jurisprudential accounts of law have mostly not taken this in. When we speak of law, we use the singular. The plurality of laws is, at best an afterthought. This is a mistake. Plurality is built into the very reality of law. This chapter cannot yet provide this concept; it can serve only to develop one element. That element is recognition. Recognition is amply discussed in the context of Hart’s rule of recognition, but this overlooks that recognition matters elsewhere, too. My suggestion is that we should accept not one but two rules of recognition in the concept of law. One, well-known, is the rule of internal recognition as developed by H.L.A. Hart — the idea that a developed legal system requires its recognition as law by its officials. The other, much ignored but equally important, is the rule of external recognition — the idea that law is law insofar as it is recognized externally by other legal systems. The rule of internal recognition is an example of a secondary rule. The rule of external recognition is of a different type. It is a tertiary rule. Hart suggested that a legal system is not complete unless it has, in addition to primary, also secondary rules. My suggestion is that, under conditions of legal pluralism, a legal system is not complete without such tertiary rules.

Download the essay from SSRN at the link.