Insights About the Nature of Law from History
Kobe Memorial Lecture, 2014
48 Pages Posted: 25 May 2014 Last revised: 18 Jul 2014
Date Written: May 1, 2014
When analytical jurisprudents answer the question “What is Law?” typically they presuppose the state law model, then abstract from this to identify essential features of law. In this essay, I use a genealogical approach. Rather than abstract from current intuitions about law, I trace backwards and look for antecedents and variations, examining law in different social-political groupings, from hunter gatherers, to chiefdoms, to early states, to empires, to transnational law. In contrast to the static conception of law produced by analytical jurisprudents, this approach presents law as a social construction that changes over time as society becomes more complex, taking on different forms and functions in different social settings. I combine functionalist perspectives and critical perspectives to present the beneficial and oppressive aspects of law. What results is a dynamic, multidimensional vision of law as a social institution informed by anthropology, archaeology, sociology, history, and political science.
Keywords: Jurisprudence, Legal Philosophy, Law and Society, Law and History, Legal Sociology, Law and the Social Sciences, Law and the Humanities, Comparative Law
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