Brian Z. Tamanaha

A general jurisprudence of law and society

1. The Framework 2. Law and Society in Western Legal and Social Theory 3. Loosening the Hold of the Mirror Thesis 4. Against the Mirror Thesis 5. A Socio-Legal Positivist Approach to Law 6. A Non-Essentialist Legal Pluralism 7. Elements of a General Jurisprudence Index

Law as a means to an end : threat to the rule of law

Introduction Part I. The Spread of Legal Instrumentalism: 1. Non-instrumental views of law 2. Changing society and common law in the nineteenth century 3. Nineteenth century legislation and legal profession 4. Instrumentalism of the legal realists 5. Twentieth century Supreme Court instrumentalism Part II. Contemporary Legal Instrumentalism: 6. Instrumentalism in legal academia in the 1970s 7. Instrumentalism in theories of law 8. Instrumentalism in the legal profession 9. Instrumentalism of cause litigation 10. Instrumentalism and the judiciary 11. Instrumentalism in legislation and administration Part III. Corroding the Rule of Law: 12. Collapse of higher law, deterioration of common good 13. The threat to legality Epilogue.

Realistic socio-legal theory : pragmatism and a social theory of law

Realistic Socio-Legal Theory draws upon philosophical pragmatism, the philosophy of social science, and several decades of empirical studies from the fields of legal anthropology, legal sociology, and political science, to revisit core issues in legal theory. It articulates an epistemological and methodological foundation for the social scientific study of law, and addresses, among other issues, the fact/value distinction, the relationship between behaviorism and interpretivism, the concept of law, the constitution and variety of legal practices, the nature of a legal system, the problem of indeterminacy, and the structure of judicial decision making. The book attempts to satisfy three distinct objectives: to better inform legal theory of the findings of socio-legal studies, to better inform socio-legal studies of the concerns of legal theory, and, finally, to render both fields more realistic in orientation.

The Rule of Law and Legal Pluralism in Development

AbstractAfter decades of disappointing progress in building the rule of law in societies that suffer from poorly functioning legal systems, the development community has turned its attention to legal pluralism. Legal pluralism is a prominent feature in many development contexts, with both negative and positive implications for the rule of law. The negative questions revolve around whether or to what extent the presence of multiple coexisting legal forms hampers or detracts from efforts to build the rule of law. The positive questions revolve around whether alternative legal forms in situations of legal pluralism might satisfy rule of law functions that failing state legal systems are unable to provide. This essay explores these questions.

The Knowledge and Policy Limits of New Institutional Economics on Development

Abstract: I critically examine the effort of new institutional economics (NIE) scholars to define, map, and measure the realm of formal and informal institutions, and to offer specific policy prescriptions. I also articulate why these efforts face insurmountable barriers, and demonstrate the limits of the NIE policy agenda by showing that scholars are repeating lessons learned in law and development over four decades ago.

What is 'General' Jurisprudence? A Critique of Universalistic Claims by Philosophical Concepts of Law

Abstract This essay compares two different types of general jurisprudence: one philosophical in orientation and the second with an empirical bent. These approaches are represented by two recent books: Scott Shapiros Legality and William Twinings General Jurisprudence. I compare them along several axes, including their underlying theoretical assumptions, their concepts of law, the sources they draw upon, and their claims of general application. A deep tension exists between these two approaches: Shapiro claims to have identified the essential nature of law, which he grounds in state law, and he rejects sociological insights about the concept of law as irrelevant. Twining does not make essentialist claims; he encompasses various forms of law, and he incorporates sociological insights. According to the standards of the first type, the second type does not qualify as general jurisprudence because it does not involve the philosophical search for the essence of law. As this comparison will reveal, however, Shapiros concept of law is identical in core respects to sociological approaches to law, and suffers from the same limitations. I argue, furthermore, that philosophical concepts of law tend to be highly parochial (despite universalistic pretensions), and have potentially harmful real world consequences.

O primado da sociedade e as falhas do Direito e Desenvolvimento

The paper examines the fruits of the efforts of Law & Development to show how their results are debatable. it also examines the accumulated body of knowledge about what works in Law & Development to show how it is inconclusive. to do this, it draws the implications of the primacy of the society for Law & Development, an approach that asserts that law is interconnected with everything else in society, so everything matters. this is the fundamental insight of the investigation conducted by Law & Society, original home of the work that now is conducted under the label of law & development.

On the Instrumental View of Law in American Legal Culture

This brief essay - a contribution to the forthcoming collection, On Philosophy in American Law - plays out the implications of legal realism in contemporary legal thought. The essay tracks the progress in the 20th century of the fundamental notion that law is an instrument to serve the social good. It shows that the first half of this notion (law is an instrument) became entrenched in every aspect of legal thought while the second half of this notion (the social good) became increasingly problematic. The result, this essay argues, is that the law itself is now a battleground in which groups and interests fight to seize control of coercive legal power and wield it in pursuit of their own interests. This essay is a synopsis of the argument developed in Law as a Means to an End: Threat to the Rule of Law (Cambridge University Press 2006).