Author Archives: Thomas Riesthuis

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.

Continue reading