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Disruptive Implications Of Legal Positivism’S Social Efficacy Thesis, Brian Z. Tamanaha
Disruptive Implications Of Legal Positivism’S Social Efficacy Thesis, Brian Z. Tamanaha
Scholarship@WashULaw
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 …
Functions Of The Rule Of Law, Brian Z. Tamanaha
Functions Of The Rule Of Law, Brian Z. Tamanaha
Scholarship@WashULaw
This concise essay examines multiple manifest and latent functions of the rule of law. The rule of law is characterized as a society in which government officials and the populace are generally bound by and abide law. The functions covered include: personal and collective security and trust; integration of society; legal restrictions on officials; liberty and guiding conduct; economic development; a pivotal place for legal professionals; entrenching power structures; normative commitment and critical standard; and rhetoric. The discussion raises core issues about each function.
A Reconstruction Of Transnational Legal Pluralism And Law’S Foundations, Brian Z. Tamanaha
A Reconstruction Of Transnational Legal Pluralism And Law’S Foundations, Brian Z. Tamanaha
Scholarship@WashULaw
This essay addresses core theoretical issues surrounding global/transnational legal pluralism, taking up the work of leading theorists. First, I demonstrate that global legal pluralism is very different from earlier versions of legal pluralism (postcolonial and sociological). Next, I expose the flaw of over-inclusive conceptions of legal pluralism, which appears in the global legal pluralism of Paul Berman, and I explain why theoretical concepts of law cannot solve this flaw. I then address the profusion of private and hybrid regulatory forms on the domestic and transnational levels, and I mark the line between theory and practice. Thereafter, I expose problems with …