The rule of law is the most important political ideal today, yet there is much confusion about what it means and how it works. This 2004 book explores the history, politics, and theory surrounding ...the rule of law ideal, beginning with classical Greek and Roman ideas, elaborating on medieval contributions to the rule of law, and articulating the role played by the rule of law in liberal theory and liberal political systems. The author outlines the concerns of Western conservatives about the decline of the rule of law and suggests reasons why the radical Left have promoted this decline. Two basic theoretical streams of the rule of law are then presented, with an examination of the strengths and weaknesses of each. The book examines the rule of law on a global level, and concludes by answering the question of whether the rule of law is a universal human good.
The contemporary U.S. legal culture is marked by ubiquitous battles among various groups attempting to seize control of the law and wield it against others in pursuit of their particular agenda. This ...battle takes place in administrative, legislative, and judicial arenas at both the state and federal levels. This book identifies the underlying source of these battles in the spread of the instrumental view of law - the idea that law is purely a means to an end - in a context of sharp disagreement over the social good. It traces the rise of the instrumental view of law in the course of the past two centuries, then demonstrates the pervasiveness of this view of law and its implications within the contemporary legal culture, and ends by showing the various ways in which seeing law in purely instrumental terms threatens to corrode the rule of law.
According to conventional wisdom in American legal culture, the 1870s to 1920s was the age of legal formalism, when judges believed that the law was autonomous and logically ordered, and that they ...mechanically deduced right answers in cases. In the 1920s and 1930s, the story continues, the legal realists discredited this view by demonstrating that the law is marked by gaps and contradictions, arguing that judges construct legal justifications to support desired outcomes. This often-repeated historical account is virtually taken for granted today, and continues to shape understandings about judging. In this groundbreaking book, esteemed legal theorist Brian Tamanaha thoroughly debunks the formalist-realist divide. Drawing from extensive research into the writings of judges and scholars, Tamanaha shows how, over the past century and a half, jurists have regularly expressed a balanced view of judging that acknowledges the limitations of law and of judges, yet recognizes that judges can and do render rule-bound decisions. He reveals how the story about the formalist age was an invention of politically motivated critics of the courts, and how it has led to significant misunderstandings about legal realism.
History of legal pluralism since the medieval period - challenges in formulating legal pluralism due to issues of defining "law" - presentation of an approach to contemporary legal pluralism which ...frames the salient features of legal pluralism while avoiding conceptual problems presented by many current approaches.
This article is a lightly edited version of the keynote address delivered at the 2023 ICON-S Annual Conference, held at Victoria University of Wellington-Te Herenga Waka, on 5 July 2023. I provide an ...overview of legal pluralism and its implications, addressing why legal pluralism heretofore has been overlooked by jurists, the historical roots of legal pluralism, how to identify what qualifies as law, internal and external legal pluralism, three categories of law that help frame legal pluralism, why customary law is difficult to incorporate within state law, the implications of legal pluralism for legal development and human rights, and much more.
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Through the mid-twentieth century, jurisprudents considered sociological jurisprudence to be one of the most influential theories of law in the United States. By end of the century, however, it had ...virtually disappeared. The publication of Roger Cotterrell’s
Sociological Jurisprudence: Juristic Thought and Social Inquiry
(2018) provides an occasion to examine what this theory of law was about, why it disappeared, and its prospects for revival. The topics covered in this essay are the circumstances surrounding the origin of sociological jurisprudence, the tenets of sociological jurisprudence, the successes of sociological jurisprudence, its relationship with sociology of law, its relationship with legal realism, its place in contemporary jurisprudence, and finally, the need to keep jurisprudence open
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A century ago the pragmatists called for reconstruction in philosophy. Philosophy at the time was occupied with conceptual analysis, abstractions, a priori analysis, and the pursuit of necessary, ...universal truths. Pragmatists argued that philosophy instead should center on the pressing problems of the day, which requires theorists to pay attention to social complexity, variation, change, power, consequences, and other concrete aspects of social life. The parallels between philosophy then and jurisprudence today are striking, as I show, calling for a pragmatism-informed theory of law within contemporary jurisprudence. In the wake of H.L.A. Hart’s mid-century turn to conceptual analysis, “during the course of the twentieth century, the boundaries of jurisprudential inquiry were progressively narrowed.”1 Jurisprudence today is dominated by legal philosophers engaged in conceptual analysis built on intuitions, seeking to identify essential features and timeless truths about law. In the pursuit of these objectives, they detach law from its social and historical moorings, they ignore variation and change, they drastically reduce law to a singular phenomenon—like a coercive planning system for difficult moral problems2—and they deny that coercive force is a universal feature of law, among other ways in which they depart from the reality of law; a few prominent jurisprudents even proffer arguments that invoke aliens or societies of angels.
Efforts at law and development have failed for decades. The underlying reasons for the failures have been understood just as long. Nevertheless, law and development initiatives are proliferating, ...carrying on with similarly unsuccessful projects and methods. Academic work on law and development over the course of this same period has traveled full circle, ending up where it began, even as the number of scholars engaged in the subject multiplies, issuing an outpouring of books and articles. Billions of dollars and the efforts of a multitude of dedicated individuals have been expended in pursuit of law and development. If the reasons underlying the persistent failures are not integrated into our understanding, law and development practitioners and scholars will be standing in much the same place a generation hence.
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This essay conveys past and present legally plural situations across the Global South, highlighting critical issues. It provide readers a deep sense of legal pluralism and an appreciation of its ...complexity and the consequences that follow. A brief overview of colonization sets the stage, followed by an extended discussion of colonial indirect rule, which formed the basis for political and legal pluralism. Thereafter, I discuss in order, the transformation-invention of customary law, socially embedded village courts, the enhancement of the power of traditional elites, uncertainty and conflict over land, clashes between customary and religious law and women's right and human rights, the recent turn to non-state law by development agencies, and the entrenched structure of legal pluralism. Notwithstanding innumerable variations and changes across locations and over time, the essay shows that legal pluralism across the Global South constitutes a distinct, enduring social-historical formation with shared structural features that must be understood on its own terms. The essay is written for scholars, government officials, international development agencies, and law and development theorists and practitioners interested in law in postcolonial societies.
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