Socio-Legal Positivism and a General Jurisprudence
Brian Z. Tamanaha
Washington University in Saint Louis - School of Law
Oxford Journal of Legal Studies, Vol. 21, No. 1, pp. 1-32, 2001
A general jurisprudence is an account of law and legal phenomena that is applicable to all societies. The benefits to be derived from constructing a general jurisprudence, according to its proponents, include achieving greater conceptual and analytical clarity, helping identify, describe, and understand law, developing a comparative framework for the study of law, and facilitating the moral evaluation and improvement of law. In his classic text, The Concept of Law (1961), H.L.A. Hart made the most successful attempt to achieve this objective. His reduction of law to the union of primary and secondary rules appeared to capture a fundamental truth about the basic elements that constitute law, and he applied this reduction to illuminate many longstanding jurisprudential issues.
Hart's core analysis has survived relatively unscathed following almost forty years of critique. Its hardiness is strong evidence of its soundness. With the notable exception of Ronald Dworkin's engagement, much of the discussion today consists of refinements and modifications of Hart's theory, rather than outright repudiations. Yet few would say that we have achieved a general jurisprudence as a result of his work. This failure, despite its extraordinary success in other respects, suggests that his analysis contains debilitating, though perhaps hidden, limitations.
I will attempt to extend Hart's project one step further toward the achievement of a general jurisprudence. In the course of this analysis, I will hold Hart, and myself, to the standards Hart set for himself, both in terms of what he proposed to be the measure of his concepts and in terms of his overall aim. He acknowledged that there was more than one way to conceptualize law. "If we are to make a reasoned choice between these concepts, it must be because one is superior to the other in the way in which it will assist our theoretical inquiries, or advance and clarify our moral deliberations, or both." Concepts that specify what law is are not are not right or wrong, or testable or falsifiable; they are more useful or less useful, and their use value is determined by the purpose for which the concept is constructed. The ultimate test for the approach I set out is whether it enhances our ability to describe, understand, and evaluate the legal phenomena.
Hart identified his aim "to provide a theory of what law is which is both general and descriptive." I will argue that he was not general enough and not descriptive enough. Despite his avowed intentions, his concept of law was not capable of accounting for the many variations of legal phenomena in different cultures and times, and his account was not as value neutral has he apparently thought. My adoption of the label socio-legal positivism signals that I encounter legal positivism from the direction of the social scientific study of law in the hope of more closely realizing Hart's self-described aim of producing a work in "descriptive sociology."
My argument recognizes that Hart was substantially correct in his identification of primary and secondary rules (though wrong in some of the conditions he attached to them); however, his abstraction from state law provided too limited a base upon which to construct a general jurisprudence. I shift to a higher level of generality, to place Hart's analysis under a broader umbrella and resituate it as one (key) part of what is a more expansive baseline. At this higher level of generality, old and settled understandings are shaken up and the legal landscape looks unusual in informative ways. Customary law and international law, for example, are no longer seen as pre-legal or as imperfect examples of state law. Moreover, two widely held theses - that efficacy is essential to the existence of law, and that law is institutional in nature - are challenged. Also interestingly, this higher level of generality gives rise to a legal positivist view of natural law, which suggests a new way of understanding the relationship between the two.
I will begin the argument by describing and criticizing Hart's concept of law, and the conditions he attached to primary and secondary rules. The vehicle for this critical analysis will be an exploration of the tensions contained within his simultaneous resort to conventionalism, essentialism and functionalism. The criticisms I press will lead directly into my reformulation and resituating of his concept of law. Thereafter, I set out the basic elements of the socio-legal positivist approach to law, and indicate how this presents a new and interesting characterization of law well suited for a general jurisprudence. In the course of this analysis I mention the work of other legal positivists when informative. However, the dominant focus is on Hart's analysis, owing to his extraordinary influence, and to the fact that he has produced the most refined version of legal positivism to date.
Accepted Paper Series
Date posted: May 29, 2001
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