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Pragmatic Reconstruction In Jurisprudence: Features Of A Realistic Theory, Brian Z. Tamanaha
Pragmatic Reconstruction In Jurisprudence: Features Of A Realistic Theory, Brian Z. Tamanaha
Scholarship@WashULaw
A century ago the pragmatists called for reconstruction in philosophy. Philosophy at the time was occupied with conceptual analysis, abstractions, a priori analysis, and the pursuit of necessary, universal truths. Pragmatists argued that philosophy instead should center on the pressing problems of the day, which requires theorists to pay attention to social complexity, variation, change, power, consequences, and other concrete aspects of social life. The parallels between philosophy then and jurisprudence today are striking, as I show, calling for a pragmatism-informed theory of law within contemporary jurisprudence. The realistic theory outlined in this essay focuses on what law does, what …
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 …