Being Realistic About Law

giammarco-boscaro-eWpBNXRHfTI-unsplashThomas Riesthuis

Legal philosophers are often criticised for being out of touch with legal practice. At best, their theories provide a highly abstract but dated understanding of what law is. In a recent prize-winning book entitled A Realistic Theory of Law legal philosopher Brian Tamanaha argues that this often heard critique is true. Many legal philosophers fail to adequately explain how law and legal institutions function: they rarely succeed in addressing the current social context in which law is made and applied. Tamanaha maintains that this lack of attention to the complexity of legal practice is endemic to the field of jurisprudence today, but considers a particular jurisprudential strand of thought to be responsible for this neglect. As he explains: “Jurisprudence in recent decades has become increasingly abstract, specialized, and narrow. Analytical jurisprudence, dominated by legal positivists, has traveled the furthest in this direction.” If legal philosophers, and in particular those who are part of the analytical tradition of jurisprudence, fail to take law in context seriously, what aspects of legal practice should they be concerned with? In this blog, I critically assess Tamanaha’s realistic approach to law and contrast it with the approach I take in my recently defended doctoral thesis. Although I agree with Tamanaha’s critique of contemporary jurisprudence, I argue that legal theories that are out of touch with legal practice should be amended and further developed.

Tamanaha’s discontent with the current state of jurisprudence, which I share, stems from the widely held belief that legal philosophers are in search of necessary and universal claims about law. This means that legal philosophers aim to identify features of law that are true independent from time and place. These philosophical claims about law also explain a feature of law that can be found in all legal systems. For example, some legal philosophers argue that law is a rule governed practice, a system to solve coordination problems in society or a means to reach substantive ends, such as justice. Each of these claims may be understood as necessary and universal claims about law. This would imply that these features exist in all legal systems, independent of time and place. Tamanaha is right in criticising the merits of these claims. He emphasises that when legal philosophers make necessary and universal claims they inevitably rely on general intuitions about what a paradigmatic case of law is. In practice, legal philosophers take state law, legal rules promulgated by state officials such as legislatures and courts, as a central case that a legal theory should explain. This means that legal philosophers have state law in mind when they make philosophical claims about law. However, state law cannot be considered a central case of law in all legal systems, in past, present, and future. In some legal systems, state law may be considered a paradigmatic case of law while in other legal systems state law is only of minor importance. In these legal systems, customary law or international law may be a more plausible starting point from which more general philosophical claims about law can be made.

Other forms of law appear to be relatively insignificant when state law is considered the starting point of a legal theory. For instance, international law is often treated as relatively insignificant area of law in the field of jurisprudence. In some cases, this has led legal philosophers to argue that international law is not really law at all. A well-known example is H.L.A. Hart’s The Concept of Law, in which he argued that international law lacks an important feature of a legal system: secondary rules. These secondary rules distinguish law from other social rules, such as moral rules or rules of etiquette. International law is one illustration of a form of law that many legal philosophers consider to be relatively insignificant because they have state law in mind when they make general philosophical claims about law. However, international law plays an important role in legal practice in many parts of the world. International law imposes many obligations on states, but increasingly also establishes obligations for individuals. Thus, a philosophical account of law should address state law and international law when domestic and international rules and institutions play an important role in a legal system. The focus on state law has also led legal philosophers to avoid acknowledging the existence of legal pluralism; the co-existence of different forms of law. Because international law is an important source of legal obligation, state law and international law are co-existing sources of law. Therefore, Tamanaha stresses that legal philosophers should take international law and legal pluralism more seriously if they maintain that their philosophical claims adequately explain how law and legal institutions function today.

There is much to agree with Tamanaha’s plea for a realistic approach to law. In many legal systems, a plurality of forms of law exist in which state law is only one of many sources of legal obligation. Tamanaha’s most original argument in A Realistic Theory of Law explains that state law-centred legal theories fail to adequately explain many instances of state law. Nevertheless, Tamanaha’s realistic approach also has its weaknesses. Firstly, it is important to highlight that legal philosophers do not necessarily agree on what general intuitions about law should inform their legal theories. They can only try make plausible what aspects of legal practice a legal theory should address. Legal philosophers deeply disagree on how law should be understood. The general intutions that inform a legal theory are also prone to this kind of disagreement. No consensus exists between legal philosophers on what the starting point of a legal theory should be. Even if a consensus is reached, they disagree on what methods are appropriate to reach more general philosophical claims about law. For instance, in my doctoral thesis (The Intertwinement of Legal Orders: A Critical Reconstruction of Theories of Jurisprudence), I argued that legal theories that aim to explain law in Western liberal democracies should address international law and legal pluralism because these forms of law are of central importance in legal practice. A legal theory has a limited explanatory force when it cannot make sense of these forms of law. Thus, I agree with Tamanaha that legal philosophers should pay more attention to international law and legal pluralism. Nevertheless, I do not think that knock-down arguments can be given that would point out what aspects of legal practice should explained by a legal theory. At some points in A Realistic Theory of Law, Tamanaha seems to suggest that legal philosophers should aim to provide these arguments when he considers: “legal philosophers have all along failed to undertake the preliminary task of justifying their pre-theoretical identification of the central case of law.”

Secondly, Tamanaha’s critique of leading theories of jurisprudence does not necessarily mean that these theories are beyond redemption. In my view, legal theories that make necessary and universal claims about law should be amended and further developed so that they address international law and legal pluralism. Here it is important to explore Tamanaha’s distinction between three traditions of jurisprudence that I have also relied upon. Legal philosophers in the analytical tradition aim to reach a rigid conceptual framework that distinguishes law from other social practices. Legal philosophers in the normative tradition maintain that law is an inherently moral phenomenon. Socio-legal theories aim to provide an empirically informed account of law and legal institutions. In A Realistic Theory of Law, Tamanaha develops elements of an empirically informed account of law and legal institutions. He criticises legal theories in the analytical tradition, and in some cases, legal theories in the normative tradition, because they often present necessary and universal claims about law. However, amending or further developing these legal theories could also lead to an insightful philosophical account of law that adequately addresses international law and legal pluralism without making necessary and universal claims. In my doctoral thesis, I further developed legal theories in the analytical and normative traditions of jurisprudence in light of international law and legal pluralism. For instance, H.L.A. Hart’s positivist legal theory aids in clarifying why courts apply legal rules from other legal systems, while Ronald Dworkin’s interpretive theory of law helps to make clear why courts in different legal systems share their authority. Each of these theories have relative strengths and weaknesses in how they explain international law and legal pluralism. This also holds for an empirically informed account of these forms of law. Therefore, I maintain that legal theories of each of the main traditions of jurisprudence should be amended and further developed so that they provide different but vital insights into how law and legal institutions function today in Western liberal democracies.