A Holistic Vision of the Socio-Legal Terrain

Tamanaha discusses Marc Galanter\u27s holistic vision of the socio-legal terrain. Galanter\u27s socio-legal vision has two central overlapping foci, and he always keeps an eye on each and on their interaction. The first focus is the official state legal system, which he examines from every conceivable angle: who becomes lawyers, how are they trained, how many lawyers are there, what are the circumstances of their work environment, who pays for their services. Galanter also focuses on what they are not doing (intentionally or otherwise), inquiring into the implications and consequences of their inaction. These inquiries extend from the official legal system to engage, encompass, and interact with Galanter\u27s second central focus: the social realm of intercourse and regulation. This social realm, in Galanter\u27s vision, is chock full of a plurality of interacting, overlapping, active regulatory systems of every kind-from religious systems, to corporations, to sports leagues, to the family

Law’s Evolving Emergent Phenomena: From Rules of Social Intercourse to Rule of Law Society

Law involves institutions rooted in the history of a society that evolve in relation to surrounding social, psychological, cultural, economic, political, technological, and ecological influences. Law must be understood naturalistically, historically, and holistically. In my usage, naturalism views humans as social animals with natural traits and requirements, historicism presents law as historical manifestations that change over time, and holism sees law within social surroundings. These insights inform my perspective in A Realistic Theory of Law. While these propositions might seem obvious, few works in contemporary jurisprudence build around them. In this essay, I draw on the notion of emergence to further elaborate the implications of naturalism, historicism, and holism for legal theory. Emergent phenomena arise in connection with objects or agents whose interactions produce qualitatively new features not found in its constituent parts. Two senses of emergence are contained in this idea: the emergent phenomenon is greater than the sum of its parts, and its emergence is a historical occurrence. Theories of emergence were originally articulated in a late nineteenth and early twentieth century reaction against scientific reductionism. Originating in biological theories of evolution, emergence was extended to explain a range of phenomena, including the transition in levels from physics, to chemistry, to biology, to the emergence of consciousness from material brains, to the emergence of social structures from the actions of individuals. Emergence is enjoying renewed attention as a component of complexity theory. However, I will use the notion of emergence to illuminate aspects of law without grounding the analysis in complexity theory. First, I introduce emergence. Then I describe five emergent aspects of law: fundamental rules of social intercourse; legal systems as organized coercion; specialized legal knowledge; a relatively fixed legal fabric; and a rule of law society. The first three emergent phenomena in combination constitute fundamental features of modern legal systems. The two remaining emergent phenomena relate to law in contemporary society. In the course of describing these aspects of law, I address implications for various important issues in legal theory exposed by seeing them as emergent phenomena

The Tension Between Legal Instrumentalism And The Rule of Law

At the heart of the United States legal culture lie two core notions that exist in deep tension with one another: the idea that law is an instrument, and the rule of law ideal. Although they continue to coexist despite this tension, there are indications that the instrumental view of law is putting a serious strain on the rule of law ideal. The substantive version of the rule of law is the idea that there are legal limits on the government: there are certain things the government cannot do, even when exercising its sovereign lawmaking power. This version of the rule of law ensures the rightness of law in accordance with a preexisting higher standard. The formal version of the rule of law is the idea that the government is bound to abide by legal rules that are publicly set forth in advance, are certain and stable, and are applied equally to all in accordance with their terms. This version of the rule of law ensures the predictability of law, which allows citizens to plan their affairs with knowledge of the legal consequences of their actions. Both versions of the rule of law ideally share the basic proposition that the government and its officials, as well as citizens, operate within legal limits and are bound to follow legal rules. The basic difference is that the former version sets limits on the permissible content of law, whereas in the latter version the law can be whatever the law maker desires, as long as it satisfies the formal requirements set out above. it is important to recognize, the modem shift in liberal societies away from a substantive understanding of the rule of law toward a formal understanding of the rule of law was concomitant with the rise of the instrumental view-they were linked as siblings born of the same complex of factors. Starting with a discussion of former non-instrumental views of law, I will support these assertions by outlining the growth and implications of instrumental views of law for the rule of law

The Realism of Judges Past and Present

This Article has a single objective: to dispel the notion that judges are deceptive or deluded about judging. These unwarranted assumptions about judges distort theoretical and empirical debates about judging. Ordinarily the participants in any activity are presumed to possess valuable insights about the nature of that activity. Owing to the assumption that judges are deluded or dishonest, what they say on the subject of judging is often regarded with skepticism, discounted at the outset

Why Sovereigns Are Entitled to (Horizontal) Benefits of the International Rule of Law

A dozen years ago, Jeremy Waldron published an influential article arguing that sovereign states are not entitled to the benefits of the international rule of law. His conclusion follows from his assertions that the purpose of the rule of law is to protect individual liberty, and the purpose of international law is to protect individuals. This article critically responds to his position. International law is based on the notion that states are autonomous and equal members of the international society ordered through legal relations. The legal relations of the international community of states, I argue, constitute the horizontal dimension of the rule of law, which Waldron overlooked. Focusing on horizontal rule of law functions, I provide descriptive, theoretical, and normative reasons why states are, and should be, entitled to the benefits of the rule of law

A Reconstruction of Transnational Legal Pluralism and Law’s Foundations

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 the relational concept of law formulated for global legal pluralism by Ralf Michaels, showing why it is unsuitable for many situations of legal pluralism. The approach to transnational legal pluralism I articulate avoids these conceptual problems. It centers on conventionally identified forms of law that vary and change over time, which can be grouped in terms of three categories: community law, regime law, and cross-polity law. Finally, I set forth a handful of specific lessons for a reconstructed transnational legal pluralism