The Data of Jurisprudence

Social Science Research Network, 2018

Reviewed by Kevin P. Lee  3 TAMANAHA, A REALISTIC THEORY OF LAW, supra note 1 at 1. 4 Following Anthony Lisska, the natural law theory of John Finnis is referred to herein as the "Finnis Reconstruction." See, ANTHONY LISSKA, AQUINAS'S THEORY OF NATURAL LAW (1998) 82-115. 5 TAMANAHA, A REALISTIC THEORY OF LAW, supra note 1 at 1. 6 Id. 7 Tamanaha terms these styles of jurisprudential reasoning as "schools." He suggests that the other "theoretical approaches" such as law and economics and critical studies, "considers law in its social totality." Id. 8 Id. at 17-21 9 Id. at 24. 10 Id. at 2-3. 11 Id. at 10. 12 Id. at 9.

Golden Gate University Law Review, 2019

Brian Z. Tamanaha has written extensively on realism in jurisprudence, but in his Realistic Theory of Law (2018), he uses "realism" in a commonplace way to ground a rough outline of legal history. While he refers to his method as genealogical, he does not acknowledge the complex tensions in the development of the philosophical use of that term from Nietzsche to Foucault, and the complex epistemological issues that separate them. While the book makes many interesting points, the methodological concerns outweigh them in the overall assessment of the value of the work.

37 American Bar Association Journal 23, 1951

2018

As part of a conference on Brian Tamanaha’s book, A Realistic Theory of Law, this article evaluates Tamanaha's claims in favor of Historical Jurisprudence. I agree with Tamanaha that the great works of that school of thought deserve more attention than they are now receiving. Also, as Tamanaha points out, some of the insights of Historical Jurisprudence were adapted by (or emerged independently in) the works of American Legal Realists and Sociological Jurisprudence. Ultimately, though, the article argues that the role of history in understanding law and legal systems must be distinctly different from the role claimed for history by the writers of the Historical Jurisprudence school.

American Journal of International Law, 1986

What is law? What is its purpose? Does it consist merely of rules? Can anything be law? What has law to do with justice? Or morality? Democracy? What makes a law valid? Do we have a duty to obey the law? Th ese, and many other, 'theoretical' questions suffuse the fabric of jurisprudence and legal theory. 1 Jurisprudence is consequently ubiquitous. Its concerns are an inescapable feature of the law and legal system. But it is more. As will soon be evident, it is both informed by, and has significant implications for, economic, political, and social theory. Drawing the boundaries of this vast terrain is therefore a challenging exercise. Studying jurisprudence means stepping back and reflecting on the ideas and assumptions that underlie and thereby define legal practices and institutions. Whereas in other law courses one studies areas of substantive law, jurisprudence studies law in a much more general way, and asks much more abstract and theoretical questions about law as such. Jurisprudence has been there from the times of Socrates 2. Jurisprudence considers general philosophical and theoretical questions about the nature, purpose and operation of law.

Law and critique, 2024

In this paper I will try to subsume what Carl Schmitt referred to as the three types of juristic thought – positivism, decisionism and institutionalism – under the same 'signature of power’. With this expression I refer here to a general enunciative function that informs (legal) thought, forcing it to perform an (ex-ceptional) articulation of (form of) law and (force of) life. My suggestion is thus that it is possible to interpret the different approach to the law question of two fatherly figures of modern jurisprudence – Hans Kelsen (positivism) and Carl Schmitt (decisionist-institutionalism) – in a way which, while mantaining that there is indeed a difference between their theories, points also towards a more fundamental partnership which concerns the very form (i.e. ex-ceptionality) of their questioning. The purpose of this paper is thus to show that the fundamental differences between these two approaches become indistinguishable if re-considered in the context of a broader problematisation of power which, following Giorgio Agamben’s reinterpretation of Foucault’s work on biopolitics, can here be defined as an ideology of govern-mentality according to which, simply put, sociality can be reduced to one, two-sided, operation: government/self-government through a decision on the form of law, to be perfomed at different levels, including thought. Legal theory as practiced by Kelsen and Schmitt is, in this respect, governmental or biopolitical, because it institutes a fictional threshold of indifferentiation between law (form) and life (force), whose preservation, by means of further (ex-ceptional) articulations (i.e. inclusive-exclusions), becomes the jurist’s fundamental task. Moreover, given the central role of both Kelsen’s positivism and Schmitt’s decisionist institutionalism for modern legal theory in general, a critical reflection on the act of (legal) theorising as such as an act of power is made possible. The modern tradition of legal theory can thus be interpreted – in spite of its increasing complexity and fragmentation (which was already reflected, at the beginning of the last century, in the fragmentation of legal theory into positivist, institutionalist and decisionist stances) – as preserving thought’s power to relate law and life. One possible alternative to a theory of (i.e. that belongs to) power is, I think, a practice of critical observation (a study) of the power of theory.