A General Jurisprudence of Law and Society

Brian Tamanaha, Professor of Law at St. John's University, New York, was raised in Hawaii and educated in the United States. Early in his career he served as Assistant Attorney General of Yap in Micronesia. This experience made a profound impression on him.

Tamanaha's experience in Yap has been a major stimulus in all of his work to date (Reference TamanahaTamanaha 1993a). His second book, Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law, was published in 1997. This set out to provide a basis in philosophy and social theory for a “thoroughly social, non-essentialist, behaviour-based view of law” (p. 245). The main use of “isms” in jurisprudence is to caricature the views of those whom one seeks to criticize. However, Tamanaha goes in for self-labeling, characterizing himself as a legal positivist (following Hart), a pragmatist (Dewey rather than Rorty), an interactionist (Mead, Goffman, and Geertz), an interpretivist (Weber, Mead, and Schutz), and a conventionalist (again following Hart).Footnote ⁵ These labels at least give a general indication of where the author is coming from and signal likely points of departure for those with different views or perspectives.

Mirror Theories and the Social Order Thesis

The first concern of A General Jurisprudence of Law and Society is the relationship between law and society. Almost half is devoted to an examination of the history, motivation, and falsity of various forms of the thesis that “law mirrors society.” These “mirror theories,” Tamanaha claims, pervade our heritage of legal thought, represent a comfortable delusion, and normally are used to legitimate positive law.

My initial reaction to Tamanaha's attack on mirror theories was one of skepticism. First, what prominent jurist has ever seriously held a strong view that law mirrors society? Second, is there not a core of truth in weak versions of the mirror thesis? This skepticism was based on dissatisfaction with the debate between Alan Watson and his critics about Watson's thesis that the main agent of legal change is imitation or imposition.Footnote ¹⁴ This debate is a prime example of false polemics in which each side has tended to draw the contrasts in over-sharp colors.Footnote ¹⁵“Strong Watson” was as vulnerable to criticism as “strong mirror theories,” but weak versions of each position are quite easily reconciled.

Tamanaha follows Watson in some respects, but his argument is less simple, less radical, and more interesting than first impressions may suggest. To explain why this is so involves parsing the simple phrase “law mirrors society.” What mirrors what? What does “mirroring” mean in this context?

What Does Law Mirror?

Tamanaha considers the concept of “society” no longer to have any analytical value (p. 209). However, he uses it here as shorthand for a quite complex set of ideas, because the phrase “law and society” is a standard term that he wishes to “unpack,” especially in respect of the relationship between the two elements. Mirror theories fall into three groups: (a) those that maintain or assume a close connection between positive law and the customs, usages, habits, and practices of society; (b) those that maintain a close connection between positive law and morality; and (c) “selective mirror theories,” such as Marxism, feminism, and critical race theory, that see a close connection between law and the interests, values, or ideology of a particular group or class (pp. 40–41). Thus “society” is here no more than a shorthand for custom, morals, interests, or other related concepts.

Tamanaha presents an elaborate account of nonlinear, complex shifts within Western legal theory from emphasis on custom to emphasis on consent in group (a) and from emphasis on substantive morality to emphasis on procedural rationality in group (b). Moreover, with the growth of legal expertise there has been an interjection of a class of professionals—Weber's legal honoratiores—who mediate relations between law and society and use law to further their own interests and values (an example of a group (c)). The transnationalization of professional legal culture tends to further increase the distance between positive law and any given society. In short, the legal expertise of lawyers and judges contributes to the relative autonomy of law.Footnote ¹⁶

The basic structure of this part of Tamanaha's argument is summed up in the following diagram.

This brief summary does not do full justice to Tamanaha's quite nuanced account of some significant patterns that he discerns in the heritage of Western legal thought. But it is the bold picture that is of most interest, rather than his more detailed analysis or his sometimes surprising claims about which of these thinkers can be labeled as strong adherents of the mirror thesis.Footnote ¹⁷

The Social Order Thesis

In clearing the ground for constructing a core concept of law for his realist sociolegal theory as part of general jurisprudence, Tamanaha has three main aims. First, to distinguish between criteria of identification of law and any account of its actual or possible functions. Talk about what law does presupposes an idea of what law is (RSLT:106–07; cf. GJLS:138–39, 177–81, 191). Second, to pare away from the criteria of identification any necessary conceptual link between “law” and any essential characteristics or functions. And, third, to attack “the social order thesis,” that is, empirical claims or assumptions that “law functions to maintain social order.”

Functionalism, the concept of function, and functional analysis are long-established arenas of controversy in social science. The first problem is with the word “function” itself. Statements such as “The main function of X is to promote/further Y” are, without more, radically ambiguous. As Merton put it succinctly: “The large assembly of terms used indifferently and almost synonymously with ‘function’ includes use, utility, purpose, motive, intention, aim, consequences” (Reference MertonMerton 1967:77). One can add further words, which are themselves ambiguous, such as role, contribution, and point.

In the present context let us start by distinguishing three primary uses of function: (1) social consequences or effects; (2) purposes or goals; (3) purposes plus effects.Footnote ²⁵ Tamanaha follows orthodox social scientists in focusing on effects, thereby avoiding the difficulties of attributing motives, intents, or purposes to collectivities such as groups or institutions.Footnote ²⁶ For him the proposition “Law functions to maintain order” is a claim about the actual consequences of law (what law in fact does) or possibly a statement that combines purposes and effect to mean “The purpose of law is to maintain order and it is effective in doing so” (use (3)).Footnote ²⁷ Many prominent jurists treat law as a purposive enterprise, so that some idea of purpose or point is a necessary element in their conception of law.Footnote ²⁸ We shall have to return to this later, but here let us focus on Tamanaha's critique of the social order thesis in uses (1) and (3).Footnote ²⁹

Tamanaha's second target is the proposition that “law functions to maintain social order.” As we have seen, “function” in this context refers to effects, consequences, or contribution to society rather than to purpose or point.

In ordinary usage “order,”“ordering,” and “orderly” have several meanings; some of the differences are quite nuanced. According to Wrong, “The ‘problem of order’ has come to be widely recognized as a major, often the major, perennial issue of social theory” (Reference WrongWrong 1994:37, cited at p. 208) One of Tamanaha's concerns is to separate the conceptual problem of identification of law from empirical questions about its actual effects. In this context it is useful to distinguish between three main usages of “order,” which differ from each other mainly in respect of scope: (1) social control; (2) social order; and (3) ordering of relations between legal persons or units (legal subjects).Footnote ³⁰ I shall suggest that Tamanaha's critique is concerned with (2).

Often, but not always, “social control” carries associations of control by the state or other authority. Although it may include some factors that have the effect of controlling behavior without human agency, it is often difficult to sever the association of “control” from ideas of purpose and agency (Reference CussonCusson 2001:2730, citing Reference GibbsGibbs 1989) For this reason the term often has a negative connotation, implying “coercion, manipulation, labeling, and stigmatization.”Footnote ³¹

A great deal of literature on law has been directed against the quite common assumption—suggested by the phrase “law and order”—that the sole or main function of law is coercive social control of deviant behavior by authority. This assumption treats criminal law as the paradigm case of law, and punishment as the characteristic form of sanctioning. Today, within legal and social theory this narrow “social control” model of law can be considered a soft target for it is generally agreed that the prevention and punishment of deviance is only one of the typical concerns of state law.Footnote ³² Most jurists accept that in addition to group survival, coordination, and flourishing, law's functions can be constitutive, symbolic, regulatory, benefit conferring, facultative, facilitative, and educative.Footnote ³³

When Tamanaha attacks “the social order function,” he clearly intends something wider than, but inclusive of, social control in this narrow sense.Footnote ³⁴ Since “function” here refers to consequences, without any necessary association with purpose or agency, it differs from “social control” as it is used in much modern criminology and legal theory, where “function” usually implies purpose, goal or point.Footnote ³⁵

However, by implication, Tamanaha's “social order” seems to be narrower than a more general concept of “ordering relations between subjects.” In several places he asserts that law can have other functions besides “social ordering” or “contributing to social order.”Footnote ³⁶ For example, in a passage that needs clarification he gives examples of law that has “little to do with general social order,” including law as the formal structure underlying the market, transactions constructing the infrastructure of government bureaucracy, and law as a form of instrumental action that is different in operation from law as the enforcement of norms (pp. 237–38). “Law as a means and form of government action is a different animal—in purpose, use and function—from law governing everyday social life”(p. 238).

Tamanaha therefore seems to be making a distinction between “social order” on the one hand and other functions, which include providing infrastructure for market and governmental activity. But surely most of his examples are concerned with contributing and maintaining orderly relations? As articulated in this book the distinction is obscure.Footnote ³⁷ What is significant is that Tamanaha restricts the concept of “social order” quite tightly. If this is a correct interpretation, his critique of the proposition that law maintains social order is correspondingly restricted.

Tamanaha's critique of the social order thesis is sustained and powerful. Perhaps its main conclusions can be summarized in the following propositions.

1. 1. Law is only one of the sources of social order.Footnote ³⁸

2. 2. Primacy for maintaining social order usually lies in the other sources of social order (p. 236).

3. 3. It is a fallacy to assume or believe:Footnote ³⁹

   • • That law is the only institution that contributes to ordering (pp. 137–38, 176–77, 211–23).

   • • That ordering cannot occur without law (pp. 35–36, 145–46, 208ff).

   • • That law in fact always promotes ordering (p. 240).

   • • That the only functions of law relate to dispute processing or social control or social order in a narrow/restricted sense (pp. 36–37, 179, 237–40; cf. RSLT:109).

   • • That law is generally effective (ch. 5).

   • • That law is effective in the maintenance of social order by virtue of its reflective quality (ch. 5).

   • • That law never promotes conflict or disorder (p. 240; cf. RSLT:128).

4. 4. The natural social condition is one of order, permeated at various levels with regular episodes of conflict (p. 223, original italics).

5. 5. “The traditionally assumed relationship [between law and social order] gets things precisely upside down. It is state law that is dependent on these other sources of social order if it is to have a chance of exerting an influence” (p. 224).

These propositions provide a sharp contrast to the versions of “the social order thesis” that Tamanaha attacks. However, I shall argue later that none of these propositions is incompatible with a “thin” functionalist position.

Although Tamanaha claims that there is empirical support in existing studies for most of these propositions, his concern is not to advance an empirical theory, but rather to free social inquiry from presuppositions and beliefs embodied in the mirror and social order theses.

Constructing a Core Concept of Law

For Tamanaha, the challenge for legal theory is to accommodate traditional, religious, colonial, transnational, and Western legal phenomena within a single framework (p. xii).

If one wishes to construct a concept that encompasses a diversity of phenomena, it is usually necessary to relax or pare down the conditions for its use. The statement “X is true under conditions A, B, and C” will typically cover a narrower range of situations than “X is true under conditions A and B.” Tamanaha recognizes that his “core concept” of law has to be quite thin and that there is a price to be paid for such abstraction (p. xvi). But he is also concerned to have criteria of identification that differentiate law from other social phenomena. Such dilemmas confront any jurist who is concerned with constructing conceptual frameworks that transcend languages, cultures, and traditions and that cover the whole globe. The main concepts also need to be freed, so far as is feasible, from identification with theoretical baggage that has local or narrow associations. Tamanaha sets about the task with a determined use of Occam's Razor.

Tamanaha's treatment of “society” illustrates his method. The term “society” has been so widely used for so many purposes that it is both ambiguous and vague. Yet it has acquired strong associations with the idea of a territorial area delimited by relatively precise boundaries that are often roughly co-extensive with those of a nation-state or country (“the state-society unit”) (Reference AlbrowAlbrow 1996). Recently, there has been a strong reaction against treating “societies” as discrete, impervious units that can be studied in isolation (e.g., Reference GiddensGiddens 1990; Reference Collier and StarrCollier & Starr 1989). Because of such factors, Tamanaha concludes that “society” as a concept “is no longer serviceable as an analytical device” or as an orienting concept (p. 206).Footnote ⁴⁰ Instead, he proposes and uses “social arena” as an orienting concept that can be used at many different levels in a flexible way.Footnote ⁴¹

Tamanaha uses a similar method of abstraction for most of his key concepts. The biggest challenge is presented by the concept of law, a challenge that he feels is unavoidable (p. 133). Here he employs a rather different strategy, focusing in detail on a single work. He responds to the challenge by taking Hart's The Concept of Law as his starting point and subjecting it to a bold, but sympathetically critical, reassessment. The outcome is a radically thinned down and modified version of Hart.Footnote ⁴²

Tamanaha shares Hart's aim to develop a positivist descriptive theory about the form and structure of legal systems generally that is not immediately concerned with their evaluation or legitimation. However, he finds Hart's concept of law too narrow in its reach, too closely linked to the idea of the modern state, subject to some debilitating internal tensions,Footnote ⁴³ and, like nearly all Western jurisprudence, quietly ethnocentric (pp. 150–51; cf. pp. 56–57).

Tamanaha summarizes the relationship of his theory to Hart's as follows.

This passage requires some elucidation. Tamanaha's interpretations and criticism of Hart's views will, no doubt, attract controversy. Here we are more concerned to clarify Tamanaha's own position and the claims he makes for his own theory. He purports to retain, but modify, Hart's conventionalism, but to reject entirely all functionalist and essentialist elements in his theory. The introduction of these three elusive “isms” at this point is not very helpful. There is controversy about whether Hart was a “functionalist,”Footnote ⁴⁴ what is meant by “essentialism,”Footnote ⁴⁵ and Tamanaha confusingly uses “conventionalism” to refer to two loosely related ideas that are best kept separate (see below). If we strip away these abstract labels, the main divergences from Hart appear to be as follows.

1. 1. Tamanaha retains as illuminating the idea of the union of primary and secondary rules, but confines it to state law and drops it as a necessary element in his core concept of law.Footnote ⁴⁶

2. 2. Like Hart, Tamanaha rejects any necessary conceptual link between law and morality, but he also goes on to reject any such link between law and any social functions, such as social control, social order, or dispute processing. He boldly extends the separation thesis to read: “There is no necessary connection between law of whatever manifestation or kind, and morality or functionality”(p. 157, original italics).

3. 3. Since the link between law and function has been severed, so has any requirement of effectiveness in performing any function (pp. 143–48).

4. 4. Tamanaha rejects as essential or necessary any link between law and state, any idea of institutionalized norm enforcement (pp. 138–40), or claims to comprehensiveness, to supremacy, or to monopoly of power within a particular geographical territory or to exclusivity or openness.Footnote ⁴⁷

5. 5. Tamanaha drops the ideas of normativity, of institution, and of “system” as necessary features of the core concept of law.

6. 6. Tamanaha accepts the “social sources thesis” of Hart and Raz (pp. 159–61), but extends it beyond state law “to all manifestations and kinds of law” (p. 159). In other words, the source of law is recognition of social practices as law by those subject to them.

7. 7. Tamanaha extends the rule of recognition beyond officials to include all social actors. But he retains “the internal point of view” as crucial. So his formulation becomes: “Law is whatever people identify and treat through their social practices as‘law’ (or‘droit,’‘recht’ etc.)” (pp. 166–71, 194, original italics).

Thus, law can be said to exist even if it has no functions, is ineffective, has no institutions or enforcement, involves no union of primary and secondary rules, and even if there is no normative element. This radical paring down of Hart's conception of law enables Tamanaha to include within a single conception of law, state law, customary law, religious law, international law, transnational law, religious law, and, perhaps surprisingly, natural law (secular as well as religious).Footnote ⁴⁸“All of these manifestations and kinds of law are social products. The existence of each is a matter of social fact”(p. 159).

Some may be surprised to find natural law included in this list, perhaps because it is generally thought of as a body of ideas or doctrine rather than a social practice.Footnote ⁴⁹ Furthermore, natural law tends to lack institutionalized enforcement, often has no institutional presence (p. 230), is not necessarily conceived of by its practitioners as belonging to a system,Footnote ⁵⁰ and falls outside most jurists' definitions of law, “despite the fact that the people involved see them as such” (p. 193, italics added).Footnote ⁵¹ However, it can satisfy Tamanaha's own test:

Examples of natural law embodied in American social practice include the anti-abortion movement and Martin Luther King's campaign of civil disobedience, both of which have been carried out in the name of natural law. Natural law has also been embodied in parts of the U.S. Constitution, in the practice of philosophers and jurists, and in the daily practices of citizens. It has regularly been enlisted to bolster state legitimacy (pp. 158, 241) and many iniquitous actions have been committed in its name. “No particular version of natural law principles has a necessary connection with morality” (p. 158).Footnote ⁵²

The inclusion of natural law as one of the kinds and manifestations of law as a social practice neatly uses linguistic convention to tweak the tail of juristic convention. This links with a plea for a greater emphasis on the perspectives of social actors and it opens up a range of possible lines of sociolegal inquiry that have not received much attention. Natural law also exemplifies a type of law that often lacks some of the essentialist criteria that Tamanaha has excluded.

Except in one particular, relating to the internal governance of institutions,Footnote ⁵³ Tamanaha's core concept of law embraces a wide range of phenomena that have been the labeled “law.” Its attraction lies in suggesting a coherent path out of the Westphalian bind, in moving away from treating a modernist conception of state law as paradigmatic, and in suggesting a simple criterion for identification of law, separate from questions about function, legitimation, evaluation, generalization, and comparison. However, Tamanaha's position is likely to be challenged from a number of directions. In what follows I shall confine myself to three main questions: Is the labeling test workable? If not, is this core conception too broad? If so, is there a single better general post-Westphalian conception of law? I shall argue that the labeling test is inadequate, that there are some usable, slightly less thin alternatives, but that Tamanaha has convincingly shown why no general “core concept of law” can claim to be the best one.

Labeling

Tamanaha's lengthy account of the intellectual history and defects of mirror theories and their inadequacy to explain relations between law and social change leads to the conclusion that “there is a necessity to reconceptualise the very notions of ‘law’ and ‘society’” (p. 133). As we have seen, he substitutes the flexible term “social arena” for “society” and leaves it to the sociolegal researcher to give precision to the term for the purposes of a particular inquiry. In short, “social arena” is a flexible analytic concept to be clarified and refined by the observer for her immediate purposes.

Many jurists and legal scholars have adopted a similar approach in relation to “law.” In ordinary usage the word “law” has so many different meanings and is applied to such varied phenomena that attempts to construct a satisfactory general concept of law, even of state law, seem doomed to failure and to have very limited utility. One can orient one's field of inquiry and delimit its scope without resort to an abstract definition or conception of law. Or one can stipulate how law is being conceived for a particular purpose.

Apart from giving up on constructing a general concept of law, jurists have resorted to a number of other strategies. Some have shifted the focus of attention away from law onto some other concept, such as dispute processing or institutionalized norm enforcement. For example, Simon Roberts in his excellent Order and Dispute almost completely abandons the word “law” as an organizing concept, even though he continues to call himself a legal anthropologist.Footnote ⁵⁴ A second option is to identify and analyze a paradigm case, but leave the boundaries vague or even completely undefined. Thus, Herbert Hart took Western municipal legal systems as the paradigm case of law, analyzed their form and structure, and acknowledged that there were a few close analogies, the most important being public international law (CL:ch. X). Tamanaha rejects this approach as being too narrowly focused for his purposes, which require the inclusion of various manifestations of “non-state law” (pp. 150–51).

A third approach is that of “family resemblances,” following Wittgenstein's famous analysis of the word “game,” which cannot be analyzed satisfactorily by specifying necessary and sufficient conditions for its use. But it can be elucidated in terms of activities that have overlapping characteristics linking them in ways members of a family may be linked.Footnote ⁵⁵ Clearly, “law” in all its usages is a good deal more complex than “game,” but if the analysis is conceived in terms of law as a species of social practice or social institution or normative order, it may be illuminating to build up a conception that accommodates nearly all or most of the phenomena that a sociolegal scholar might be concerned to include in a general theory without having to formulate a stipulative general definition or set of criteria of identification. Law conceived in such a fashion can serve as a flexible orienting concept, leaving open the possibility of drawing more precise boundaries for the purposes of a particular study. However, there is unlikely to be sufficient consensus about which conditions to select as criteria of identification outside a specific context.

These are some of the techniques available to a theorist or researcher in constructing a conception of law as an analytic concept.Footnote ⁵⁶ Tamanaha rejects all of them in favor of a labeling approach: “Law is whatever people identify and treat through their social practices as ‘law’ (or ‘recht,’ or ‘droit’ etc.)” (pp. 166, 194).

This suggestion is counterintuitive and, in my view, unworkable. Tamanaha tries hard to anticipate some objections. First, purely idiosyncratic or arbitrary usages are out because what is identified has to constitute an actual social practice (pp. 166–67). So Humpty Dumpty is disqualified as an informant.Footnote ⁵⁷

Second: Whose usage is to count and how many?

Far from being a low threshold this might prove to be a rather stringent condition, if, for example, the nature of the practice is contested, or the practice is not familiar to most members of the group, or is otherwise obscure. There may be no consensus among informants about the meaning(s) of the label(s) chosen by the investigator or about their application to particular phenomena. For example, in England, Quakers may differ among themselves as to whether the rules governing “business” at Meeting are “law” or about the appropriateness of labeling any aspects of Quaker governance in this way or, indeed, whether “Quaker law” has any referent at all.Footnote ⁵⁸

Third, Tamanaha tries to anticipate problems of translation.

This passage does not meet some quite obvious objections to the labeling test. To consider these, let us adopt the standpoint of a sociolegal researcher about to embark on a comparison of certain aspects of law in her own country (A) with law in country B. Let us assume that she has established that all seven of Tamanaha's kinds of law, including religious law, natural law, and international law, are recognized as being established as social practices in A. Her first step is to discover which of their social practices representative local informants treat as “law” in country B. But she may encounter a number of difficulties.Footnote ⁶⁰

First, for which of the multiple meanings of “law” in English usage is she to look for an equivalent? The Oxford English Dictionary lists 22 major entries under “law,” each with variants. Seventeen of these refer to human law, the rest to “scientific and philosophical uses.” The latter might be discarded even though the two sets of usages are connected. A few more can be eliminated as belonging to some local context, for example, when law is used in expressed or implied opposition to The Gospel (OED:10b). Some usages are differentiated by elements that Tamanaha dismisses as “essentialist,” such as obedience (OED:3a) or enforcement (OED:3a) or a species of human institution (OED:3b), or emanating from an authoritative source (OED:1a) or obligatoriness (OED:3d).Footnote ⁶¹ There does not appear to be a single entry in The Oxford English Dictionary treatment of “law” that, on its own, can be selected as the sole candidate for translation into other languages.Footnote ⁶² Second, our researcher may find that in country B (1) there are several words roughly equivalent to the word “law” (e.g., droit, loi); (2) there are several meanings attached to one or more of such words; or (3) there is no word equivalent to “law.”Footnote ⁶³

The more generalized senses of “law” in English usage do not make distinctions to be found in such obvious examples as ius/lex, droit/loi, recht/gesetzen—distinctions that may have different nuances in different contexts.Footnote ⁶⁴ Tamanaha airily suggests that “droit” and “recht” are usable equivalents in French and German, but this seems arbitrary (e.g., pp. 166, 194).Footnote ⁶⁵ Why privilege the words that have a distinct normative association in a strongly positivist legal theory?Footnote ⁶⁶

Suppose our researcher has cleared the hurdles of identifying representative informants and linguistic equivalents, but finds that in country B the supposed linguistic equivalent is applied to a strikingly narrower range of social practices than in country A. Suppose she asks her informants why they do not attach the label “law” to, for example, any Hindu social practices or to any local customs. Suppose the answer is: “Because they are not recognized by the state” or “Because the culture of our law schools is highly positivistic” or “Because the National Academy has decreed that the word ‘law’ should be confined to state law.” Is our researcher then committed to comparing a broad range of A's social practices with the state law of B? It seems quite plausible to expect that the conventional patterns of local linguistic usage may be explained by arbitrary, random, or peculiar local contingencies that provide no adequate benchmarks of comparability. It is quite possible that in many social arenas linguistic usage will reflect a common perception or assumption that state law is the paradigm case of law or some other kind of functionalist or essentialist assumption that Tamanaha is trying to escape. If the reasons for established linguistic conventions are different in country A and country B, linguistic usage provides no basis for comparing or generalizing about legal phenomena in the two countries. It does not make sense to compare state law in B with a much wider variety of phenomena in A just because of the vagaries of usage. This is one of the standard pitfalls of comparative work.Footnote ⁶⁷

An example of the difficulties facing researchers is to be found in a recent study of the ordering of a Quaker community in central England (Reference Bradney and CownieBradney & Cownie 2000). This book is in the best tradition of legal anthropology and is directly relevant to contemporary debates about legal pluralism and alternative dispute resolution. The Quakers are particularly interesting in emphasizing and being good at dispute prevention, but they appear to be less adept at handling disputes when they arise. The authors argue strongly for the view that there is such a thing as “Quaker Law.”

Bradney and Cownie suggest that Quakers themselves consider only those few parts of Quaker Faith and Practice that are obligatory, required, or constituting “responsibilities” to be “law,” the rest consisting of advice, general counsel, or suggestions.Footnote ⁶⁸ This is not a semantic test of how Quakers use the label “law,” but rather a way of elucidating a working distinction that is important for participants in Quaker meetings. The term “Quaker law” does not feature in Quaker Faith and Practice; it is used as an analytic concept by the researchers to relate their study to discussions in the sociolegal literature about legal pluralism and alternative dispute resolution.Footnote ⁶⁹

The problem that Tamanaha faces is reminiscent of the debate between Paul Bohannan and Max Gluckman about the use of “folk” and “analytic” concepts in legal anthropology.Footnote ⁷⁰ Briefly, Bohannan accused Gluckman of imposing the English concept of “the reasonable man” on the Barotse, thereby wrongly trying to interpret Barotse law in terms of English “folk concepts.” Gluckman's defenders were able to say that “the reasonable man” was not a translation of the English term, but rather illustrated the point that the Barotse had flexible standards that were functional equivalents of the English standard. “Flexible standards” and “functional equivalents” are analytic terms.Footnote ⁷¹ Most of Tamanaha's framework consists of analytic concepts and the switch to relying on folk labels for “law” seems unworkable. Careful analysis of local linguistic conventions relating to social practices may be useful in bringing out significant local distinctions and associations in the thought and discourse of local actors, and in achieving accurate and nuanced interpretation of their internal points of view. It may bring to light internal differences or disagreements that may not be apparent on the surface. However, comparison and generalization about social practices and institutions need both a grasp of internal meanings and a vocabulary and a conceptual framework that transcend local cultures. They cannot be based on linguistic conventions alone.Footnote ⁷²

By going down the “emic route,” Tamanaha may be making things unnecessarily difficult for the researcher who has first to inquire into subtleties and vagaries of local linguistic usage, the origins or reasons of such usages, and the extent to which they are embedded in social practice. Such inquiries may be illuminating and one way into understanding local practices and institutions, but they are not the only way and may not always be fruitful. Furthermore, as we have seen, the contingencies of local linguistic usage may arbitrarily limit the focus of inquiry.

One suspects that Tamanaha may have been misled by his conflation of two distinct meanings of “conventionalism”: this has become a much debated label in contemporary jurisprudence and Tamanaha uses it in two distinct senses. First, associated with the movement known as “linguistic analysis” or “ordinary language philosophy,” a “conventionalist” is someone who analyzes ordinary usage to identify which phenomena are included under a term (at least by most educated people) (CL:2–4; GJLS:150). Second, a “conventionalist” in jurisprudence is someone who seeks to identify law on the basis of social conventions or practices.Footnote ⁷³

It is true that Herbert Hart was part of a movement in analytical philosophy that used analysis of “ordinary language” to elucidate concepts and to dissolve philosophical puzzlements. But Hart's aim in The Concept of Law was to elucidate law as an analytic concept in terms of other analytic concepts, such as rule of recognition, sovereignty, sanction, primary and secondary rules—terms of art that do not feature much or at all in the everyday discourse of educated people; some of them were coined by Hart himself. Analyzing ordinary usage was only a starting point of Hart's method. Hart is widely identified as a “conventionalist” in jurisprudence for the quite different reason that he locates the rule of recognition in social practice or convention.Footnote ⁷⁴ Here the label “conventionalism” refers to his conclusions rather than to his method of analysis. The concept of social practice is an analytic concept; to interpret a given social practice involves taking into account the internal point of view of actors, in addition to externally observable phenomena such as behavior or discourse. But the concept is the observer's not the subject's.

One value of analytic concepts is that they can be applied to peoples and cultures that do not have such concepts or do not think in such terms. It is commonplace that the speakers of a language are often unable to articulate and may not be aware of the basic structure and rules of grammar underlying the language; that a social institution or practice may be interpreted and explained partly or even largely in terms of its latent functions, of which all or most participants are unaware; and that local beliefs, myths, and so forth can sometimes be interpreted as substitutes for scientific knowledge about diseases, for example, that certain myths are designed to explain symptoms that Western medicine would attribute to a recently identified virus.Footnote ⁷⁵ It is now widely accepted that both analytic and folk concepts are important in interpreting and explaining social practices and cultures as well as physical phenomena. Constructing an analytic concept of law does not involve abandoning the hermeneutic principle of taking account of internal points of view.Footnote ⁷⁶

Social Practices, Institutions, and Norms: Is Tamanaha's Concept Too Thin?

Tamanaha treats norms, the existence of a group, institutions, enforcement, acceptance by officials, claims to supremacy, claims to comprehensiveness, the union of primary and secondary rules, and the idea of a system as contingent features of examples of law, but not as necessary features of his core concept of law. For example, one may talk about Islamic law or natural law existing as a social practice in a particular place, even if there are not any institutions for their application and enforcement.Footnote ⁷⁷ The state legal system of Yap, on Tamanaha's account, made little contribution to social order or the everyday life of ordinary people. European Community law does not claim to be comprehensive; and member states appear to have given up their claims to supremacy and comprehensiveness. Natural law may exist as a social practice without institutions or enforcement or even as part of a “system.” A preliterate people or group may have social practices that are undifferentiated from general custom or religious belief, but they may be viewed as having law if they label some of their social practices in such terms. All these examples fall within Tamanaha's conception of “law” in so far as the social actors involved recognize or label their social practices as such.

If the labeling test does not work, is there an alternative? There are three main possibilities: to reinstate one or more elements that Tamanaha would dismiss as “essentialist”; or to fall back on a thin version of functionalism that might be defended against Tamanaha's criticisms of Functionalism; or to accept that Tamanaha's reasons for thinning down Hart's concept are cogent, but that they amount to a reductio ad absurdum of any attempt to construct a satisfactory core concept of law for positivist sociolegal studies, given that the labeling test is also unsatisfactory.

Before considering whether Tamanaha has pared away too much, it is worth emphasizing that his use of Occam's Razor is radical, consistent, and potentially elegant. The result is a very thin set of criteria for identifying law, but by no means a radically impoverished view of the landscape of law. The greater the inclusiveness, the more diverse and more complex the panorama. It is also worth repeating that Tamanaha does not suggest that concepts such as group, norms, rules,Footnote ⁷⁸ institution, dispute, sanction, authority, system, and enforcement are unimportant or useless. They are not deleted from the vocabulary of sociolegal theory. Indeed, each of them may be characteristic elements of many, perhaps most, maybe nearly all examples of legal phenomena. Tamanaha undertakes functional analysis (while trying to avoid the pitfalls of traditional Functionalism) (pp. 60, 137) and he uses all of these concepts when discussing particular manifestations of law. He is even willing to accept “dispute processing,”“institutionalized norm enforcement,” and “normative orders” or “rule systems” (e.g., pp. 185, 198, 204) as useful categorizations for orienting or limiting or focusing particular lines of inquiry, provided that they are kept conceptually distinct from his more abstract core conception of law.

Some jurists who sympathize with the enterprise of moving beyond the Westphalian duo of municipal/nation state and public international law and who are prepared to accept Tamanaha's positivist premises may nevertheless think that he has pared away too much. This applies particularly to the exclusion of normativity and of the idea of “institution,” both of which are often treated as essential elements in the idea of law. I shall suggest that this is not as radical as it may seem because both normativity and institution can be incorporated by slightly modifying Tamanaha's concept of social practice.

Nearly all mainstream jurists, both positivist and antipositivist, emphasize the normative nature of law. The idea of law as a system of rules, or of norms, or of rules and principles, is explicitly at the core of the theories of Kelsen, Hart, Raz, Dworkin, Finnis, and many other jurists, and most sociologists of law and legal anthropologists. Attacks on such ideas as “talk of rules is a myth” or “the radical indeterminacy of rules” have consistently been shown to be caricatures of the jurists associated with such views.Footnote ⁷⁹ Although few jurists can be found who ever supported strong behaviorismFootnote ⁸⁰ or “a brute fact” conception of law, criticism of such positions by Hart and others are widely accepted as well taken (GLT:ch. 5). So a move to exclude any idea of normativity from a “core concept” of law is likely to be viewed with suspicion. Is this a revival of a discredited set of ideas?

Tamanaha excludes any requirement of normativity as an essential element in his core concept of law (pp. 154–55, 210–11). In so far as acceptance by officials or other subjects implies a degree of normative approval, “Hart's [strong] acceptance requirement must be dropped” (p. 154). It follows from this that a wicked or repressive or rapacious legal regime, which is obeyed solely out fear or corrupt self-interest or force of habit still counts as a legal system if people subject to it identify and treat it as law in their social practices (pp. 152–54).

Tamanaha not only pares away any possible moral element in Hart's idea of “acceptance,” but he also excludes the idea of the normative from the concept of “social practice” (pp. 154–55, 210–11).Footnote ⁸¹ Traditionally in sociology and jurisprudence, distinctions have been drawn between empirically observable behavioral patterns, such as habits, folkways, and usages, on the one hand, and social norms, such as mores, conventions, or rules that involve some standard or measure of rightness or correctness or approval or permittedness from an internal point of view.Footnote ⁸² Concepts like custom or convention or good practice that combine the factual and normative elements are usually treated as normative because they involve the use of terms such as “ought,”“may,” and “can.”Footnote ⁸³

Where does “social practice” fit into this scheme? Tamanaha seemingly places it in the empirical category, but nevertheless retains the internal point of view.Footnote ⁸⁴ Elucidation of the concept of “social practice” involves combining externally observed patterns of behavior with the internal meanings that the practice has for the social actors involved.Footnote ⁸⁵ These meanings may have a normative aspect, and many manifestations of law are infused with normativity, but that is not necessarily so. The idea of an internal point of view is necessary for making sense of a practice, but it is as important for understanding nonnormative meanings as for normative ones (e.g., Reference KemperKemper 2001; Reference BourdieuBourdieu 1990).

This empirical interpretation of “practice” does not commit Tamanaha to a “brute fact” view of law of the kind that Hart attacked.Footnote ⁸⁶ For to say that normativity is not an essential aspect of law involves no denial of the fact that the idea of norms is pervasive, important, and usually central to interpreting, analyzing, and describing almost all legal phenomena. If it proves to be the case that in practice social actors often/usually/almost always attach the word “law” to practices that have a normative element, that is a contingent fact, not a conceptual necessity. “The gunman writ large” is included under “law”; how typical or common such regimes are in fact is a matter of empirical inquiry.

Under this broad concept of social practice one can perhaps subsume some chestnuts of legal anthropology: for example (1) the practices of a group that does not articulate or think in terms of rules (but they may not use “law” as a label either); or (2) a social arena in which the outcomes of dispute processes rarely, if ever, conform to the articulated norms of the group; or (3) where competing sets of norms co-exist and are regularly invoked by disputants (“normative ambiguity”).Footnote ⁸⁷ All of these are included if they satisfy the labeling test. Conversely, Tamanaha can quite consistently agree with the view that for understanding legal phenomena the “study of rules alone is never/rarely enough” and he can join in the criticism of those who treat rules as being self-enacting, self-interpreting, self-applying, or self-enforcing.Footnote ⁸⁸ In short, he is consistent in treating rules as very important, but neither essential nor sufficient for conceptualizing law.

However, there may be an ambiguity here that requires clarification. “Normative” can mean evaluative or it can, more broadly, mean related to rules (in the sense used here). Tamanaha clearly wishes to exclude evaluation as an element in his idea of “social practice.” If “acceptance” implies some idea of approval or authority or sense of obligation, then it is not a necessary element in his concept of social practice.Footnote ⁸⁹ A pattern of social behavior may be recognized to exist and to have some meaning as a social practice by actors who may disapprove of it, resent it, and only observe it out of fear or unthinking habit or perceived self-interest. It is less clear whether or not he also wishes to exclude rules altogether as well. Chess, communication through language, dueling, and confidence tricks can all be said to be constituted by or at least to involve rules, without any necessary suggestion of approval or willing acceptance. However, if one interprets normativity (like patterning) as a relative matter and if one treats some folkways as social practices, it is arguable that one can talk of a nonnormative social practice. But this point does not seem important for Tamanaha's analysis. Much closer to ordinary and juristic usage is to treat the idea of “practice” as combining an empirical behavioral element with some idea of standard or prescription. In this usage, a social practice exists if there is a pattern of behavior that is meaningful for participants who recognize that it prescribes some norm or standard of correctness or appropriateness or value, even though they may not approve of that standard. A social practice in this sense implies social expectation, or obligatoriness, or reason for acting. The advantage of this move is that it does not make an unnecessary, seemingly radical, break with juristic orthodoxy.

Tamanaha treats law as a species of social practice, but he explicitly rejects the idea that his core concept of law necessarily involves “institutions” (pp. 164, 221; RSLT:142–52, 168–73). Here again, a very slight adjustment of the idea of “institution” can avoid some unnecessary controversy. Following Mead and Blumer, Tamanaha uses this term to refer to “Coordinated complexes of human interaction, often supported by a material base (office buildings etc.)” (p. 164, citing Reference BlumerBlumer 1969:58). For him, the idea of institution is narrower than social practice: chess is a practice, a chess club is an in institution; adjudication is a practice, a court is an institution.Footnote ⁹⁰ Legal institutions may be a species of social institution, but not all examples of law are necessarily institutionalized in this sense. For example, one can talk about Islamic law or natural law existing as a social practice in a particular place, even if there are not any institutions for their application and enforcement.Footnote ⁹¹

In ordinary usage, “institution” has many nuances of meaning.Footnote ⁹² The term is significant here because many jurists treat law as a species of social institution and because of the close link between the concept of institution and both norms and functions. It is also important because it provides a potential, somewhat underexploited, link with two important fields in social science, organization theory and the new institutionalism.Footnote ⁹³

In the present context, Tamanaha appears to adopt a quite narrow interactionist conception of institution, not very much broader than “organization.” His usage needs to be differentiated from two broader ones. First, many theorists interpret institutions in terms of norms. In this view, social behavior becomes “institutionalized” when it becomes established into a stable and significant pattern. For instance, a repeated pattern of behavior becomes established as a convention or custom when the social actors involved accept it as meaningful and that meaning relates to some idea of expectation, obligatoriness, or reason for acting. Similarly a social norm becomes institutionalized when it becomes part of an established pattern of behavior. Again this approximates more closely to ordinary juristic usage without significantly altering Tamanaha's position.

To sum up, Tamanaha's exclusion of the ideas of both norm and institution from his concept of law involves a narrow use of “institution” and a rigid separation of normativity and practice. A slight adjustment of the idea of “social practice” can link it to two concepts that are central to legal theory without compromising a strong positivist position. This adjustment might slightly narrow the range of application of the suggested core conception of law, but does nothing to resolve the problem of differentiating between “legal” and “nonlegal” practices, institutions, or norms. There is, however, a different usage of “institution” that might provide the basis for an alternative to the labeling test. This will be considered in the next section.

Alternatives to Labeling

If we need a core concept of law at all, it will be more useful if it is an analytic concept. But, can such an analytic concept be constructed if all functional and essential elements have been pared away?Footnote ⁹⁴ If law is a species of social practice, as Tamanaha suggests, what might be other ways of differentiating it from other social practices such as table manners, the rules of table tennis, gang bangs, or the internal governance of multinational corporations or sports leagues?

Let us consider four possible options. First, narrow Tamanaha's core concept by reintroducing one or more essentialist criteria. Second, use some version of the method of family resemblances. Third, reintroduce an element of what I shall call “thin functionalism.” Fourth, treat Tamanaha's effort as a reductio ad absurdum of all attempts to construct a general core concept of law that is sufficiently broad to encompass all important phenomena that attract the label “law” from those subject to them.

Some Themes in Need of Development

Conclusion

A General Jurisprudence of Law and Society is an important book. In addition to being a rich source of particular insights, fresh interpretations, and provocative criticisms, it makes a number of significant contributions to the development of a broad-based positivist theory of law in response to the challenges of so-called globalization.

1. 1. Tamanaha's first objective is to free sociolegal studies from the legacy of three pervasive assumptions: that law mirrors society; that law in fact contributes to social order; and that a primary function of legal theory is to legitimate the exercise of state power. Even those who disagree with some of his specific interpretations and arguments may be forced to acknowledge that by turning these assumptions into questions he has freed sociolegal theory and jurisprudence to investigate, describe, explain, compare, and critically evaluate legal phenomena, both generally and in particular contexts, without taking any of these ideas for granted.

2. 2. Tamanaha has contributed to the development of post-Westphalian theorizing about law by bringing together a wide variety of forms and manifestations of law under one conceptual roof. These include both municipal/state law, state-related forms of law (e.g., public international law and European Union law), and several kinds of “nonstate law.” All of these can be important elements in a reasonably comprehensive vision of law from a global perspective.

3. 3. The key step, and the most problematic, is to move beyond treating modern municipal law as the only or the paradigm case of “law.” In approaching this problem, Tamanaha builds on and significantly extends the work of Herbert Hart, especially The Concept of Law, in three main ways. First, by paring down Hart's criteria of identification of law, he is able to include a broader and more varied range of phenomena within the framework of his general core concept of law. Second, Hart failed to bridge the gap between analytical jurisprudence and sociolegal studies. By applying the techniques and insights of the former to important concepts of the latter, Tamanaha shows that, far from being in constant tension, these two approaches are complementary and need each other. Third, he proposes some significant, if controversial, refinements of Hart's ideas while remaining true to the spirit of legal positivism.

4. 4. In seeking to construct a broad “core concept of law,” Tamanaha advances powerful arguments for the elimination of all “essentialist” and “functionalist” elements as necessary elements in the criteria of identification of law. It is arguable that he has pared away too much by adopting a vague interpretation of social practice and interpreting “function” to mean consequences or effects. However, even if one reinstates the concepts of norm, institution, and purpose or point into the concept of social practice, these do not provide adequate criteria for differentiating between “legal” and “other” (or “nonlegal”) social practices. Having rejected all necessary elements from his “core concept” and having ignored a “family resemblances” approach, Tamanaha is left with the proposition that “law” is whatever those subject to it attach the label “law”to. In my view, this “labeling test” fails, largely because it attempts to use “emic” or “folk” concepts for the “etic” or “analytic” purposes of constructing a “core concept” that can be the starting point for comparison of and generalization about legal phenomena across legal cultures and traditions. However, it is an illuminating failure in that it illustrates rather clearly why many jurists, including this reviewer, think that the construction of such a general core concept is not feasible.

5. 5. Tamanaha makes some ambitious claims for his enterprise. His approach points the way to constructing general conceptions of law identified by features that are relevant to and appropriate for particular sociolegal purposes and projects. Bringing into focus a very wide range of diverse phenomena as part of one “whole view” can assist in the process of spotting patterns and relationships across contexts and observing large-scale and small-scale developments (p. xiv). Tamanaha also poses some general questions about relations between law and society (pp. 231–33), and at the end of the book suggests some potentially fruitful hypotheses (pp. 233–36) and some new directions for research (pp. 236–40). These are useful at a strategic level, but they may be too abstract to be of immediate application to specific problems of particularistic empirical research and comparison. In this respect Tamanaha provides a general orientation without having the heuristic value of a theory, such as Llewellyn's law jobs theory, that suggests some sharp, specific questions to ask about any institution or group.

6. 6. Although A General Jurisprudence of Law and Society is his third book in what is essentially a trilogy, it is cautiously presented as a prolegomenon (pp. xix, 242). Given the ambition of the enterprise, this caution may be sensible. Perhaps because his focus is so much on the idea of a core concept of law, Tamanaha does not attempt a systematic analysis of concepts relating to features that he considers to be contingent. If instead of focusing mainly on the elusive “core concept” of law, he had systematically constructed a framework of analytical concepts, including key ones relating to important contingent features of legal phenomena, his contribution would be even more significant. Taken together, his three books contain illuminating discussions of a number of such concepts (e.g., social order, custom, ideology, and coercion), but I, for one, would have welcomed a more extensive analysis of many other concepts, including function, group, dispute, norms, normative orders, system, institutionalization, and legal subjects, some of which are touched on in this essay. Analytical jurisprudence needs to move beyond focusing on individual concepts to concentrate on groups of concepts, conceptual frames, and specific discourses (Reference TwiningTwining 2002d: Tilburg Lecture II).

7. 7. A General Jurisprudence of Law and Society, read in conjunction with its two predecessors, provides a wealth of specific insights and provocative suggestions. As our discipline becomes more cosmopolitan, many issues concerning problems of comparison and generalization about legal phenomena now claim a high priority on the agenda of legal theory. Apart from “globalization,” these include difficult issues relating to normative and legal pluralism; the relative importance of nation-states and other actors, users, and victims in law; normative questions about universalism and various kinds of relativism; and, as a crucial preliminary, critical examination of the adequacy of our conceptual tools for analyzing and discussing these issues. Brian Tamanaha has made a major contribution to this enterprise.