A New Historical Jurisprudence?

Abstract

In his provocative new book, A Realistic Theory of Law, Brian Tamanaha offers a variety of insightful analyses and conclusions that may shake up analytical jurisprudence for years to come. In the course of a relatively short and highly accessible work, Tamanaha challenges conceptual theories of law and conventional understandings of international law, clarifies important aspects of legal pluralism, and provides a novel, genealogical approach to thinking about the nature of law. It would take a whole other book (and likely a much longer one) to give due consideration to all of these topics, so the focus of this commentary must necessarily be much narrower. In this article, I focus on Tamanaha’s argument for a greater appreciation of historical jurisprudence, and his advocacy for a variation of it, his presentation of this alternative as a necessary supplement to the current widely-accepted understandings of law.

To look at these topics, we need to follow Tamanaha’s book by first considering what the original historical jurisprudence offered and what a revived version might add to contemporary debates. Part I offers a brief overview of historical jurisprudence. Part II explores Tamanaha’s views of, and claims for, a revived historical jurisprudence. Part III looks at some problems in evaluating historical jurisprudence. Finally, Part IV considers what it means for history to inform legal theory, before concluding.

Keywords

Jurisprudence, Historical jurisprudence, Legal theory, Legal history, Brian Tamanaha

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Authors

Brian H. Bix (University of Minnesota)

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