Disruptive Implications of Positivism's Social Efficacy Thesis

The Cambridge Companion to Legal Positivism, Forthcoming

Washington University in St. Louis Legal Studies Research Paper No. 19-06-14

33 Pages Posted: 18 Jun 2019 Last revised: 16 Apr 2020

See all articles by Brian Z. Tamanaha

Brian Z. Tamanaha

Washington University in St. Louis - School of Law

Date Written: June 17, 2019

Abstract

The social efficacy thesis holds that for law to exist it must be generally obeyed by the populace. Accepted by virtually all legal positivists, this is the most neglected thesis of legal positivism. Despite its nigh universal acceptance by theorists, however, the efficacy thesis is surrounded with unanswered questions with significant implications. Several questions immediately come to mind: How widespread must conformity to law be? What must people conform to (all areas of law)? Who must conform (legal officials, government officials, the entire populace, significant groups)? What does conformity entail (normatively, knowingly, behaviorally)? This essay explores these issues and a few others, revealing a number of disruptive implications of the efficacy thesis for legal positivist theory. Most significantly, I draw on the empirical reality of legal efficacy to cast doubt on the unified monopoly view of law incorporated within concepts of law as well as on the purported guidance function of law. In the course of the analysis, I address the implications of legal pluralism for the social efficacy thesis, I show that the grounds of efficacy varies and has changed over time, and I offer an account of efficacy in modern societies that is not grounded on guidance or obedience.

Keywords: Legal Philosophy, Legal Theory, Jurisprudence, Legal Positivism, Legal Pluralism, Legal Development, Legal History, Law and Humanities, Legal Anthropology, Legal Sociology, Law and Society

Suggested Citation

Tamanaha, Brian Z., Disruptive Implications of Positivism's Social Efficacy Thesis (June 17, 2019). The Cambridge Companion to Legal Positivism, Forthcoming, Washington University in St. Louis Legal Studies Research Paper No. 19-06-14, Available at SSRN: https://ssrn.com/abstract=3405459

Brian Z. Tamanaha (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

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