Book Reviews : BRIAN Z. TAMANAHA, Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law. Oxford: Clarendon Press, 1997, 280 pp., £40.00
| Published date | 01 December 1998 |
| Date | 01 December 1998 |
| DOI | 10.1177/096466399800700410 |
| Author | Reza Banakar |
| Subject Matter | Articles |
580
Gray,
K.
(1991)
’Property
in
Thin
Air’
Cambridge
Law
Journal
50: 252-307.
Hohfeld,
W
(1913)
’Some
Fundamental
Legal
Conceptions
as
Applied
in
Judicial
Reasoning’
Yale
Law
Journal
23:
16-59.
Lawrence,
D.
H.
(1986)
[1923]
’Art
and
Morality’
in
D.
H.
Lawrence,
Study
of
Thomas
Hardy
and
Other
Essays.
Cambridge
Edition.
London:
Grafton.
Raz,
J.
(1980)
The
Concept
of a
Legal
System.
Oxford:
Clarendon
Press.
Wittgenstein,
L.
(1958)
Philosophical
Investigations.
Oxford:
Basil
Blackwell.
MARGARET
DAVIES
School
of
Law,
Flinders
University,
Australia
BRIAN
Z.
TAMANAHA,
Realistic
Socio-Legal
Theory:
Pragmatism
and
a
Social
Theory
of
Law.
Oxford:
Clarendon
Press,
1997,
280
pp.,
£40.00.
The
interdisciplinary
exchanges
between
socio-legal
studies
and
the
disciplines
of
law
and
sociology
leave
much
to
be
desired.
Research
produced
within
the
field
of
law
and
society
is
often
criticized
by
sociologists
for
lack
of
theoretical
and
methodo-
logical
sophistication
and
discarded
by
lawyers
for
being
of
little
value
to
legal
prac-
tice.
It
is
perhaps
not
surprising
if
an
increasing
number
of
researchers
within
the
field
tend
to
view
their
undertakings
with
self-doubt,
anguish
and
role
confusion
and
experience
a
sense
of
impending
crisis.
It
is
in
view
of
this
sense
of
crisis
haunting
the
field
of
law
and
society
that
Brian
Z.
Tamanaha’s
attempt
to
lay
an
epistemologically
sound
foundation
for
a
so-called
’realistic’
socio-legal
theory
should
be
welcomed.
According
to
Tamanaha
the
causes
of
the
problem
sketched
above
are
threefold.
First,
the
values
of
the
research
produced
by
socio-legal
scholars
can
be
questioned;
second,
the
field
is
theoretically
underdeveloped;
and
third,
the
field
has
become
highly
politicized
by
left-wing
values.
In
order
to
resolve
these
problems
Tamanaha
employs
his
’realistic’
approach
that
is
informed
by
the
philosophy
of
pragmatism.
His
message
is
that
if
we
are
to
remedy
these three
problems,
then
our
scientific
enquiries
must
adhere
rigorously
to
such
methods
of
exploration
which
can
assist
us
in
keeping
apart
our
own
personal
values,
preferences
and
prejudices
from
the
empiri-
cal
conditions
of
our
common
social
life
(p.
55).
Tamanaha
is
in
effect
advocating
a
traditional
positivistic
approach,
arguing
that
it
can
help
us
to
depoliticize
the
field
and
thus
bring
scientific
respectability
to
it.
As
it
regards
the
underdeveloped
state
of
the
field,
Tamanaha
relates
it
to
the
failure
of
socio-legal
scholars
to
define
the
concept
of
law.
He
argues
that
without
agreement
on
the
threshold
question
what
is
law?
the
precise
field
or
object
of
our
studies
cannot
be
identified
and
therefore
no
foundation
can
be
created
upon
which
a
theoretical
construct
can
then
be
developed.
The
early
definitions
of
the
concept
of
law
were
concerned with
the
so-called
’gap
problem’,
i.e.
the
gap
between
real
law
of
the
com-
munities
(’how
people
in
a
group
actually
behave
or
what
legal
actors
actually
do’)
and
state
legal
rules
(p.
102).
At
this
juncture
Tamanaha
distinguishes
two
main
categories
of
definitions
of
the
concept
of
law
and
sustains
that
there
is
no
automatic
corre-
spondence
between
them
(p.
109).
The
first
category
focuses
on
regularized
conduct
and
thus
emphasizes
the
pattern
of
behaviour
and
norms
used
to
organize
the
every-
day
life
of
a
community.
The
second
category
highlights
the
significance
of
publicly
organized
institutional
reactions
to
disruptions
of
regularized
conduct.
In
contrast
to
the
first
category,
which
is
a
product
of
socialization,
it
presupposes
coercive
appli-
cation
of
power.
Despite
the
fact
that
this
second
category
focuses
on
the
institutional
aspects
of
the
law,
it
nevertheless
includes
the
non-institutional
(social
psychological)
reactions
such
as
shaming
and
ostracism
(p.
114).
It
means
that
although
the
two
To continue reading
Request your trial