Transnational Legal Theory, Forthcoming
34 Pages Posted: 9 Mar 2012
Date Written: March 8, 2012
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 Shapiro's Legality and William Twining's 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, Shapiro’s 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 their universalistic claims), and have potentially harmful real world consequences.
Keywords: Jurisprudence, legal theory, philosophical concepts of law, universalism, essentialism, sociological approaches to law
Suggested Citation: Suggested Citation
Tamanaha, Brian Z., What is 'General' Jurisprudence? A Critique of Universalistic Claims by Philosophical Concepts of Law (March 8, 2012). Transnational Legal Theory, Forthcoming ; Washington University in St. Louis Legal Studies Research Paper No. 12-03-02. Available at SSRN: https://ssrn.com/abstract=2018283