Insights about the Nature of Law from History: The 11th Kobe Lecture, 2014 3515115706, 9783515115704

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Insights about the Nature of Law from History The 11th Kobe Lecture, 2014 Edited by Kosuke Nasu

ARSP Beiheft 152 Franz Steiner Verlag

Archiv für Rechts- und Sozialphilosophie

Insights about the Nature of Law from History Edited by Kosuke Nasu

archiv für rechts- und sozialphilosophie archives for philosophy of law and social philosophy archives de philosophie du droit et de philosophie sociale archivo de filosofía jurídica y social Herausgegeben von der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) Redaktion: Dr. Annette Brockmöller, LL. M. Beiheft 152

Insights about the Nature of Law from History The 11th Kobe Lecture, 2014 Edited by Kosuke Nasu

Franz Steiner Verlag

Bibliografische Information der Deutschen Nationalbibliothek: Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist unzulässig und strafbar. © Franz Steiner Verlag, Stuttgart 2017 Satz: DTP + TEXT Eva Burri, Stuttgart Druck: Druckhaus Nomos, Sinzheim Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany. Franz Steiner Verlag: ISBN 978-3-515-11570-4 (Print) Franz Steiner Verlag: ISBN 978-3-515-11590-2 (E-Book) Nomos Verlag: ISBN 978-3-8487-4016-1

Table

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Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

The 11Th Kobe LecTure Brian Z. Tamanaha (St. Louis/MO) Insights about the Nature of Law from History . . . . . . . . . . . . . . . . . . . . . . . .

17

commenTaries Itaru Shimazu (Tokyo/JPN) From the Viewpoint of Private Law . A Comment on Professor Tamanaha’s Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

49

Ryuichi Nakayama (Osaka/JPN) On Legal Instrumentalism After Fukushima . A Comment on Professor Tamanaha’s Lecture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

57

Kiyoshi Hasegawa (Tokyo/JPN) Brian Tamanaha’s Conception of Law and His Critiques of H . L . A . Hart’s Theory of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

63

Michihiro Kaino (Kyoto/JPN) Brian Tamanaha’s Historical Study and His Concept of Balanced Realism . . .

71

Hiroshi Matsuo (Tokyo/JPN) The Possibility of Legal Development through Legal Assistance and the Future of Law and Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

81

Takehiro Ohya (Tokyo/JPN) Legal Assistance and Legal Development . A View from Japan . . . . . . . . . . . . .

89

Ko Hasegawa (Sapporo/JPN) How to Deal with the Multiplicity of Law . Comments on Professor Brian Tamanaha’s Theoretical Challenge to Legal Positivism . . . . . . . . . . . . . .

97

Keisuke Kondo (Kyoto/JPN) Rescuing Legal Philosophy . Comment on Tamanaha . . . . . . . . . . . . . . . . . . . 105 Tomohiko Shiina (Aomori/JPN) Social Legal Theory and Progressive Politics . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Kosuke Nasu (Kyoto/JPN) Doubting Doubts, Rescuing Beliefs . Brian Z . Tamanaha and Reflections on Philosophy of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Brian Z. Tamanaha The Orientation of Social Legal Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

PrefaCe In the early summer of 2014, Brian Z . Tamanaha, William Gardiner Hammond Professor of Law at Washington University (St . Louis, Missouri, U . S . A .), stood on the platform of the Sky Hall of the Boissonade Tower1 at Hosei University in Tokyo, Japan, to deliver the 11th Kobe Memorial Lecture . This event was originally established to commemorate the 13th IVR World Congress held in Kobe 1987, and has been sponsored by the Japanese Section of the International Association for Philosophy of Law and Social Philosophy (IVRJ) in collaboration of Japan Association of Legal Philosophy (JALP) . The Kobe Lecture has been held every three years since, and the list of invited lecturers, all of whom are the globally acclaimed scholars of jurisprudence, political or social philosophy, include Ronald Dworkin, Ralf Dreier, Joseph Raz, Will Kymricka, Randy Barnett, Emilios Christodoulidis, Ulfrid Neumann, Cass Sunstein and David Miller .2 1. The leCTure In his lecture boldly entitled “Insights about the Nature of Law from History,”3 Professor Tamanaha gave the audience a lucid account of what he sees as a well-balanced, comprehensive view on law . He started with a criticism of the general trend of late-twentieth-century legal philosophy, which has mainly revolved around two dominant schools – the legal positivism and the natural law theory – but has almost entirely ignored another approach once regarded as being quite as important as the other two .4 Tamanaha’s aim was to rehabilitate this third branch, which encourages more empirically informed studies, focusing on a close interaction between law and its social and historical conditions . Though this branch has rarely been recognized as a unique, methodologically consistent “school,” according to Tamanaha, it actually constitutes “a common core that runs through historical jurisprudence, sociological jurisprudence, legal realism, and several modern theories – ultimately traceable back to Montesquieu .”5 Tamanaha associates himself with this tradition, labeling it “social legal theory .” From Tamanaha’s viewpoint, the recent debate on legal theory, especially as developed within analytical jurisprudence, has been misguided because it is unduly limited in scope . Today most legal positivists construct their theory through an intuitive approach to law, which results in a concept of law often limited by their own 1 2 3 4 5

This 27-storey building was named after a French legal scholar Gustave Émile Boissonade de Fontarabie (1825–1910), one of the most influential foreigners in Meiji era who helped to draft much of the Japanese civil code . Some contributors to this volume refer to him . See, 83 and 92 . All the past lectures were published in ARSP, some in the form of a Beiheft together with several papers by Japanese scholars . Brian Z . Tamanaha, Insights about the Nature of Law from History, See in this volume, 17–45 . Tamanaha, The Third Pillar of Jurisprudence; Social Legal Theory, 56 William & Mary Law Review 2235 (2015) . Tamanaha, Insights about the Nature of Law from History, op. cit., 17 .

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finite experiences and habits, not to mention their generalizations about Western legal systems . In consequence, when presenting their theory as “universal,” they naturally exclude from their conceptual schemes other notions of law that lack certain “essential” features, while trivializing their social and political significance . Thus, for example, international law or primitive customary law is often thought to fall short of their standard concept of “law .” In the absence of a normative system with these features, any society should be regarded as having no “law .” In contrast, Tamanaha proposes a familiar and compelling working hypothesis, namely, no society exists without its own law . He once even refused to impose any substantive criterion of law onto any society, asserting as he did that law is what most members of the society regard as “law .”6 In his view, it is not legal scholars but ordinary people who determine what law is . On the basis of this hypothesis, Tamanaha examines a vast amount of anthropological, archeological and historical data as related to various forms, functions and ideals of law, each of which have taken shape in accordance with diversity of human life . While law must always be suited to the most basic and common human needs, it transforms and develops in various ways, at the same time as it interacts with its social, political and economical settings . Even if it is not fully institutionalized or systemized (i . e . lacking a certain monopoly of organized coercive powers or legislative/judicial authority), there are circumstances under which it may still fulfill an adequate function as law . Accordingly, from this viewpoint, “[s]harp distinctions cannot be drawn between law and custom, morality, etiquette, religion, and so on, in these early social groups because low levels of social differentiation did not have the horizontal normative variations present at higher levels of social complexity .”7 Tamanaha’s historically and culturally ingenious standpoint also enables us to see law from two opposite sides, with one describing it as necessary condition, as well as a beneficial product, of the coordinated, harmonized whole (functionalist theory), and the other highlighting the coercive – sometimes oppressive – side of law that controls and subordinates people in the interest of their political rulers (conflict theory) . Most legal scholars choose one over the other . Thus legal positivists, for example, generally take the former perspective, while critical legal scholars take the latter . However, Tamanaha thinks we should take account of both sides for a full and precise understanding of law . In short, Tamanaha recommends us to expand our theoretical exploration of law, that is, from conceptual or functional analysis of the modern state legal system to a broader approach to its various forms and dynamics, taking into consideration its historical and cultural backgrounds . According to his view, the scope of contemporary legal theory, especially analytical jurisprudence, has often been all too restricted by the needs of institutional autonomy or conceptual distinctiveness of law, thereby separating itself from moral, religious, traditional, or customary norms . Although we cannot deny that such restrictions have so far provided us with various

6

7

“Law is whatever people identify and treat through their social practice as ‘law’ (or droit, recht, etc .) .” Tamanaha, General Jurisprudence of Law and Society (Oxford University Press 2001), 166, “if sufficient people with sufficient conviction consider something to be ‘law,’ and act pursuant to this belief, in ways that have an influence in the social arena” ibid., 167 . Insights about the Nature of Law from History, op. cit., 28 .

Preface

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significant insights into modern state legal systems, they have certainly hindered us from exploring larger or richer domains of law in diverse human lives . 2. aims & signifiCanCes Tamanaha’s Kobe Lecture is, in a sense, a long-awaited restatement of his concept of general jurisprudence . He was working on this theme energetically from the late 1990s to the early 2000s,8 but seemed to have abandoned this project for more than ten years .9 Yet here he is offering us an utterly fresh exploration of the fundamental question, “what is law?” from a more historically enlightened viewpoint . And though Tamanaha has only given us a glimpse, he is sure to provide us with another unique perspective on, or at least an alternative approach to, the quest for a general theory of law as more appropriate and persuasive for our age of pluralism and globalism . His contentions may especially be illuminating for us Japanese legal scholars . First, they are interesting as a warning against the general tendencies of contemporary (analytical) jurisprudence, and the more so because we have already been so deeply infused with them, sometimes as if they were the only promising path to a meaningful concept of law . In fact, until a few decades ago, many Japanese social scientists – including legal scholars – made huge efforts to establish a development theory of law (and society) under the strong influence of modernization theory, or, more particularly, of Marxist theory, which inevitably required attentive examination of the interaction between law and the circumstances of a particular society . However, it now seems that Japanese scholars have become less and less interested in this subject since great economic growth was achieved in the second half of the twentieth century . Secondly, Tamanaha’s radically pluralistic legal theory will encourage us to see the experiences of present-day Japanese society and its law in quite a different light . As one of the oldest “developing” countries, Japan has gone through very rapid, comprehensive and fundamental changes in her political, economic, social and legal systems during the past 150 years . This has been commonly understood as a process of diligent and zealous imitation of, and catching up with, Western civilization, and has often been considered a great success . But today we know all such thinking to be too simplistic, not to say naïve . With respect of law, the “transplantation” of law cannot be accomplished by a mere transportation of it from one place to another, or by simply duplicating legal institutions and practices of “civilized” countries in “primitive” or underdeveloped societies . Tamanaha’s theory compels us to take a closer look not only at the way Japanese society has absorbed and molded Western legal systems, or struggled – and sometimes even failed – to adapt to these systems, but also at the conventional benchmark for the “transplantation” of law, which might even lead us to a redefinition of the significance of the rule of law . 8 9

Its main achievement was, Tamanaha, Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law (Clarendon Press, 1997), and A General Jurisprudence of Law and Society, op. cit . Of course, in a way all his endeavors – his studies on legal instrumentalism, legal realism and theory of the Rule of Law – can be understood as parts of this venture .

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Of course, these reconsiderations are not only of specific concern to Japanese society but may evoke a much wider such concern, because it is quite common for laws not to be homegrown but, rather, to be imported from foreign institutions and cultures, and transplanted into the country . After Tamanaha’s Lecture, three Japanese legal scholars – Professor Itaru Shimazu (professor emeritus at Chiba University, ex-president of JALP), Professor Ryuichi Nakayama (Osaka University) and Professor Kiyoshi Hasegawa (Tokyo Metropolitan University) – commented on its turn . They were all interested in Tamanaha’s unique third-way pursuit of general jurisprudence and how his pluralist view can be applicable to the modernization of Japanese society . In “From the Viewpoint of Private Law: A Comment on Professor Tamanaha’s Paper,”10 Shimazu starts by agreeing with Tamanaha’s criticism of legal positivism, which has presumed that modern Westerners intuitively think about law as if it were “common to human in general,” but adds that Tamanaha’s radically pluralist approach misses a most important feature of law, that is, “private law as nomos,” as F . A . Hayek has put it . Shimazu then considers the experiences of Japanese society during the nineteenth century, emphasizing how radically her culture and institutions were changed . He goes on to argue that the “success” of development and modernization of the legal system in Japan through those years was prompted primarily by the positivist understanding of law, which is essentially state-centered and “disconnected from indigenous social norms,”11 without the slightest understanding of law as nomos . Nakayama’s “On Legal Instrumentalism After Fukushima: A Comment on Professor Tamanaha’s Lecture”12 is almost in complete sympathy with Tamanaha’s socio-historical approach and with his critical attitude towards the dominant trend of today’s philosophy of law, while suggesting that analytical jurisprudence – at least as Hart understands it – might have been more productive in collaboration with a socio-theoretical approach . Nakayama also approves Tamanaha’s candid assertion of the law’s oppressive aspects and of his warning against the proliferation of legal instrumentalism, which regards law as a means deployed for any purpose . Nakayama points up that a special kind of unrestricted legal instrumentalism has been traditionally embedded in Japanese, not to say East Asian, legal culture, and has become dominant since the nuclear plant disaster in Fukushima in 2011 . Hasegawa’s commentary entitled “Brian Tamanaha’s Conception of Law and His Critiques of H . L . A . Hart’s Theory of Law”13 raises several questions about Tamanaha’s empiricist interpretation of Hart’s concept of law . According to Hasegawa, Tamanaha criticizes Hart’s legal theory for confining itself too much to the modern state law model and for failing to allow the possibility of the other forms of law, which should surely count as “law” in many a modern society . However, Hasegawa observes that, while Hart’s concept of law also includes some non-state laws, Tamanaha’s thoroughly pluralist conception of law might be ultimately misleading on account of its ambiguity as to the key notion of “society” or “people .” Hasegawa 10 11 12 13

See in this volume, 49–56 . Ibid., 55 . Ibid., 57–62 . Ibid., 63–70 .

Preface

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contends that as long as this ambiguity persists, his project of social theory of law will remain too vague to be instructive, especially to legal scholars . 3. oTher sessions Besides the Kobe Memorial Lecture, IVR Japan held several seminars at a variety of venues during Professor Tamanaha’s stay in Japan to allow audiences throughout the country to have an opportunity to absorb a wide range of his scholarly endeavors . In Sendai, Professor Hiroshi Kabashima (Tohoku University) organized at his university a relatively small but intimate and lively discussion session on topics concerning the history of legal thought in the U . S . A ., especially Tamanaha’s studies on legal in-strumentalism and on the legal realism movement . One of its participants, Professor Michihiro Kaino (Doshisha University), contributes an article, “Brian Tamanaha’s Historical Study and His Concept of Balanced Realism,”14 which offers detailed examination of Tamanaha’s studies on this subject, with a special focus on his Law as Means to an End and Formalist-Realist Divide15 . Kaino basically accepts Tamanaha’s eye-opening discovery that legal realists did not invent the criticism of legal formalism in the U . S . A . in the early twentieth century, but that such criticism can be traced as far back as to the judges and legal scholars of the second half of the nineteenth century . In Formalist-Realist Divide, Tamanaha maintains that mainstream legal thinking in action was always something that could be described as “balanced realism,” which is moderately rule-bound and framed by judges’ shared understanding of their society . Kaino carefully examines the scope of this argumentation and points up its connection to Tamanaha’s more recent ideas on his social theory of law, which might be seen as a version of historical jurisprudence . One of the most important turning points in Tamanaha’s thinking has been his work as a judicial administrator of the Yap Republic in the early 1980s . It was, as he himself admits, an overwhelming experience that urged him to reconsider not only every assumption of conventional legal theory but the basic schemes behind the practices of legal assistance . Thus, his general jurisprudence and his law and development studies16 are the two-fold results of this involvement . The Nagoya seminar at Chukyo University took up the latter theme to examine the virtues and vices as well as the conditions and difficulties inherent in legal assistance and legal reform in the developing countries . It was there we invited several Japanese practitioners and scholars who have had prominent roles in the practice of legal assistance, so that they could discuss with Tamanaha himself his rather harsh criticism of the theories and practices of such projects today . 14 15 16

Ibid., 71–79 . Tamanaha, Law as Means to an End: Threat to the Rule of Law (Cambridge University Press, 2006), Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press, 2009) . See, Tamanaha, The Lessons of Law and Development Studies, 89 The American Journal of International Law 470 (1995) ; Tamanaha, The Primacy of Society and the Failures of Law and Development, 44 Cornel International Law Journal 209(2011) .

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Two contributors were present at this seminar . Professor Hiroshi Matsuo (Keio University) has long been engaged in Japan’s legal assistance programs in a number of Asian countries . Citing many examples from Japan and other Asian countries in “The Possibility of Legal Development through Legal Assistance and the Future of Law and Development,”17 Matsuo describes in great detail the long and complex process of legal development and legal assistance, whereby he contends that present-day practices of legal assistance consist of carefully managed dialectic processes that are a long way from the crude unilateral imposition of an unalterable set of statutes and principles . Despite accepting Tamanaha’s general claim that sound legal development occurs only when it is supported by an internal understanding of, and a concern for, the context of interrelated elements of a society, he argues that legal assistance from foreign countries can, and sometimes actually does, help to support this process . While Tamanaha seems to be quite skeptical of such a possibility, Matsuo strongly advocates both its possibility and its desirability . In his “Legal Assistance and Legal Development,”18 Professor Takehiro Ohya (Keio University), who has also been deeply involved in assistance projects, suspects that Tamanaha’s strong skepticism might lead to a kind of quietism or inertia . Again, referring to the modern history of Japan and her colonization of other Asian countries in the first half of the twentieth century, Ohya suggests that, even if it sometimes appears to be forceful and one-sided at the outset, external engagement with the internal and spontaneous process of legal development might in the end be inevitable or even desirable if we want to avoid tragic social division and conflict, or the brutal intervention of other countries . Finally the Kyoto seminar at Doshisha University was concerned with all these topics, thereby making discussions more intense and comprehensive . Four papers covering this seminar are included in this volume, each of which considers the wide range of problems posed by Tamanaha from each writer’s distinctive point of view . In “How to Deal with the Multiplicity of Law: Comments on Professor Brian Tamanaha’s Theoretical Challenge to Legal Positivism,”19 Professor Ko Hasegawa (Hokkaido University) finds, primarily from a Dworkinian interpretivist perspective, several theoretical weaknesses in Tamanaha’s conceptualization of law and its methodology . Thus he suggests that Tamanaha’s social theory of law would fail to provide a reasonably constructed conception of law that would integrate the diverse features of law into a coherent and consistent whole, while benefiting from the multiplicity of perspectives of empirical studies . Without eliminating these shortcomings, Hasegawa contends, Tamanaha cannot succeed through his project to lay an effective foundation for the rule of law . Professor Keisuke Kondo (Kyoto University) attempts to vindicate the project of analytical jurisprudence or the philosophical approach to law in opposition to Tamanaha’s standpoint . In his “Rescuing Legal Philosophy: Comment on Tamanaha,”20 Kondo scrutinizes this criticism by dividing it into two parts – one concerning the conceptual scheme of legal positivism (internal criticism), the other concerning the political effects of its claims (external criticism) . Although he concludes that 17 18 19 20

See in this volume, 81–88 . Ibid., 89–95 . Ibid., 97–104 . Ibid., 105–113 .

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both of these are untenable, Kondo nevertheless declares Tamanaha’s specific arguments to be basically plausible, such as his comments on the excessive concern among contemporary legal philosophers with the ‘state law’ model. Thus he suggests ways of overcoming the shortcomings of such a concern while acknowledging these scholars’ philosophical perspective. Although Tamanaha’s commitment to ethical or political issues is not always clear from his writings, Professor Tomohiko Shiina (Aomori Chuo Gakuin University) endeavors to clarify this point in his “Social Legal Theory and Progressive Politics”21. Thus, after acknowledging that Tamanaha’s understanding of law has always been accompanied by a kind of instrumentalism “[l]aw is a coercive instrument for purposive human use in realizing any ends, good and evil”22 and that he accepts it as a quite undeniable fact, Shiina wonders what purpose Tamanaha thinks law should be used for. And then, having carefully examined Tamanaha’s writings, he identifies a progressive ideal, namely, the notion of “egalitalian social justice,” which is always implicit in Tamanaha’s social theory of law. In “Doubting Doubts, Rescuing Beliefs: Brian Tamanaha and Reflections on Philosophy of Law,”23 Professor Kosuke Nasu (Kyoto University) tries to approach Tamanaha’s core commitment via a somewhat unusual route. Thus, by surveying the various topics Tamanaha has discussed over the years, Nasu notes a skeptical attitude permeating his writings, and considers their characteristic qualities. What he finds is that Tamanaha’s skepticism has been generally directed not only against mainstream jurisprudence and its criticism but also against his own convictions, and that it serves as an unbiased sieve that sorts out truly reliable views from unreliable ones. Nasu labels this attitude “reflexive skepticism” and considers its implications for the future of the intellectual and political ethos of Japanese society. 4. Afterthoughts & Acknowledgements Looking back over these lectures and seminars, I cannot help admiring Professor Tamanaha for the unfailing seriousness and sincerity he has exhibited throughout these sessions. Despite a rather overbooked schedule,24 he made every effort to engage participants in free and vigorous discussions. Before each talk, which was freshly prepared for the particular session, he always constructed elaborate answers for questions or comments put to him by the designated panel right up until the opening. His lectures were always clear, thoughtful and encouraging, which made our discussions all the more interesting and instructive. We have now gratefully received Tamanaha’s latest response25 to the commentaries summarized above, and are delighted to include it in this volume. Here Tamanaha recapitulates his scholarly endeavors as “a theoretical approach that captures

21 22 23 24 25

Ibid., 115–121. Ibid., 116. Ibid., 123–132. Besides the events mentioned above, he attended four seminars as well as various meetings dealing with different topics at different venues in Tokyo, Nagoya and Osaka in two short weeks. See, Tamanaha, The Orientation of the Social Legal Theory in this volume, 133–143.

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and conveys what law is in the world .”26 As he repeatedly emphasizes, it is not law itself but, rather, law in the world, namely, every form of law in various societies with their own culture and history that is always at the center of his concern .27 For Tamanaha, empirical research is indispensable for his particular aims, revealing as it does sundry aspects of law in “the dynamic interaction of law within society, influenced by the past while continuously moving through the present, never standing still .”28 His responses to the ten commentaries encompass a variety of topics – interpretation of H . L . A . Hart’s theory, dissatisfaction with contemporary analytical jurisprudence, dangers of legal instrumentalism, possibilities (and difficulties) of legal assistance, and so on . Tamanaha is honest enough to admit to the weaknesses and limitations of his arguments, at the same time as he deigns to clarify his ideas . I will, however, refrain from going into further detail and simply leave it to our readers to make up their own minds about what they will have read here . At this juncture, let me on behalf of IVR Japan express our deep gratitude to all those who were involved with the 2014 Kobe Lecture and the subsequent seminars . First of all, I would like to offer my heartfelt thanks to Professor Tamanaha and all the contributors to this volume, as well as to the designated discussants of each session, for their stimulating presentations and discussions, whether spoken or written . I am proud to present the fruit of our meetings in these pages . I would also like to express my gratitude to all the organizers and coordinators of the venues, especially Hirohide Takikawa (Rikkyo University), Hiroki Takahashi (Komazawa University), Madoka Torisawa (Kanto-Gakuin University), Tatsuji Ohno (Hosei University), Hiroshi Kabashima (Tohoku University), Akira Goto (Aoyama Gakuin University), Takahiro Doi (Chukyo University), Hidehiko Adachi (Kanazawa University), Seiko Murabayashi (Aichi Gakusen University), Shintaro Suzuki (Aichi Gakuin University), Makoto Usami (Kyoto University), Michihiro Kaino (Doshisha University), Nozomi Hayakawa (Momoyama Gakuin University), Tsukasa Takahashi (Osaka Bar Association), Takeshi Tsunoda (Kansai University), Akiko Nozaki (Kyoto Pharmaceutical University), and others who supported us at every stage of our events . My sincere thanks go to the universities that kindly provided us with venues, and to the two organizations that helped IVR Japan to set up all these events, namely, the Japan Clinical Legal Education Association, and JALP, whose President, Hiroshi Kamemoto, led the executive board in their constant cooperation and support . Finally, we wish to express our profound gratitude to Dr . Annette Brockmöller, Managing Editor of ARSP, for both kindly agreeing to accept our proposal and for giving us helpful advice; and, last but not least, to Dr . Graeme Tytler and Mrs . Sachiko Tytler for helping to edit all the articles written by the Japanese contributors . Kosuke Nasu (President of IVR Japan)

26 27

28

Ibid., 133 . “To understand law, these approaches [sociological jurisprudence and historical jurisprudence] insist, one must apply an empirical lens to observe law in social-historical context”[ibid., 134 .]; “…Hart’s work centered squarely on law, while I preferred to locate law within society”[ibid., 134 .] Ibid., 135 .

The 11Th kobe leCTure

Brian Z. Tamanaha* (ST. LouiS/mo) insighTs

abouT The

naTure

of

law

from

hisTory

2014 kobe memorial leCTure Legal philosophy since the latter part of the twentieth century has been dominated by the contest between natural law and legal positivism, and more recently by internecine disputes between inclusive and exclusive legal positivism . A century ago the jurisprudential scene was different . “Until recently,” Roscoe Pound wrote in 1911, “it has been possible to divide jurists into three principal groups, according to their views of the nature of law and the standpoint from which the science of law should be approached . We may call these groups the Philosophical [natural law] School, the Historical School, and the Analytical School .”1 When Pound penned this, legal positivism and historical jurisprudence were the two main rivals, with natural law theory mostly dormant . Soon thereafter historical jurisprudence fell off, and after the Second World War natural law theory revived to renew its battle with legal positivism . In my view the standard breakdown of jurisprudential schools is misconceived . There have been three major branches all along, I believe, not just natural law and legal positivism, although the third goes unrecognized as such because it lacks a name and recognized identity .2 Constituting a common core that runs through historical jurisprudence, sociological jurisprudence, legal realism, and several modern theories – ultimately traceable back to Montesquieu – this third theoretical perspective centers on law as a social institution that develops in connection with the society, economy, polity, and culture, and is best understood through an empirically-oriented lens . “Social legal theory” is my label for this third branch . Elsewhere I have elaborated on social legal theory as a coherent theoretical approach and how it compares with natural law and legal positivism . Here I take the argument a step further, setting out this view of law by way of contrast to legal positivism, tackling the ultimate jurisprudential puzzle: “What is law? Legal positivists who set out to answer “What is law?” typically follow the same procedure: they assume what law is, then pare away non-essential features and render an abstract formulation of law . H . L . A Hart in The Concept of Law posited “municipal law” as the paradigm because “most educated people” see that as law .3 When reduced to its core elements, law consists of primary rules of obligation, supplemented by secondary rules that specify how to identify, change, and apply primary rules . A legal * 1 2 3

William Gardiner Hammond Professor of Law, Washington University . For their helpful critical comments on earlier drafts, I thank attendees at the Kobe Memorial Lecture, the Yale Law School Legal History Colloquium, and Washington University Law School Faculty Workshop . Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence, 24 Harv. L. Rev. 591, 591 (1911) . See Brian Z . Tamanaha, The Third Pillar of Jurisprudence: Social Legal Theory, 56 William & Mary Law Review 2235 (2015) . H . L . A . Hart, The Concept of Law (Oxford University Press 1961) 2–3 .

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Brian Z . Tamanaha

system exists, he asserted, when the bulk of the populace follows the primary rules and legal officials accept the secondary rules . The function of law is to maintain social order and guide behavior .4 Like Hart, Joseph Raz assumed that state legal systems are the epitome of law .5 Abstracting from state law, Raz identified three essential features: 1) “they claim to regulate any type of behavior;” 2) they claim supremacy over all other normative systems in society; and 3) they “maintain and support other forms of social grouping .” Law is “the most important institutionalized system in society” and “provides the general framework within which social life takes place .”6 More recently, Scott Shapiro began with intuitions about law from experts, “identifying those truths that those who have a good understanding of how legal institutions operate (lawyers, judges, legislators, legal scholars, and so on) take to be self-evident, or at least would take to be so on due reflection .”7 He came up with a batch of truisms about law (e . g . “In every legal system, some person or institution has supreme authority to make certain laws”8) and then abstracted away to come up with law’s essential features . Law, he concluded, “is a self-certifying compulsory planning organization whose aim is to solve those moral problems that cannot be solved, or solved as well, through alternative forms of social ordering .”9 These formulations of law have universal application, per Joseph Raz: “It is easy to explain in what sense legal philosophy is universal . Its theses, if true, apply universally, that is they speak of all law, of all legal systems; of those that exist, or that will exist, and even of those that can exist though they never will .”10 “When surveying the different forms of social organization in different societies throughout the ages we will find many which resemble the law in various ways . Yet if they lack the essential features of the law, they are not legal systems .”11 Applying his concept of law in this fashion, Hart asserted that primitive law and international law were at best pre-legal because they lacked fully developed secondary rules .12 Shapiro likewise declared, “Those who live in bands, in other words, don’t have law .”13 “Indeed, it is plausible to suppose that law is a comparatively recent invention, postdating the wheel, language, agriculture, art, and religion .”14 When answering “What is law?”, legal philosophers thus take a time-based concept of law – abstracted from intuitions about law of jurists in the here and now – and use it as the measure of law for all places and times . Although there is no logical objection to this way of proceeding, it masks that their conclusions about whether law exists are pre-determined by their starting assumption of the paradigm of law . To say that primitive societies lack law is equivalent to the assertion that primitive soci4 5 6 7 8 9 10 11 12 13 14

Id . 165, 188, 208 . Raz, Joseph ., 2005, Can There Be a Theory of Law?, in: The Blackwell Guide to Philosophy of Law and Legal Theory, edited by Martin P . Golding and William A . Edmundson (Blackwell Publishing), 331 . Joseph Raz, The Authority of Law (Oxford University Press 1979) 116–21 . Scott Shapiro, Legality (Harvard University Press 2011) 15 . Id . 15 . Id . 225 . Joseph Raz, Between Authority and Interpretation (Oxford University Press 2009) 91–92 . Joseph Raz, Can There be a Theory of Law?, supra 328 . Hart, Concept of Law, supra 3–4 . Shapiro, Legality, supra 35 . Id . 36 .

Insights about the Nature of Law from History

19

eties lack the basic features of state legal systems . But this begs crucial questions: Does law have only one form? Can law vary by place and change over time? Is this the most illuminating way to understand what law is? I take a different approach . While I too begin with common intuitions about what law is, rather than pare away to come up with essential features, I trace law backwards (and forward), looking for earlier manifestations, kernels, continuities, variations, and growths, observing how law is structured, what it does, and how it works in different social groupings . This is a genealogical approach, situating law at various levels of social complexity, developing in conjunction with social, political, economic, technological, and cultural changes over time . My argument proceeds on two tracks, one discussing increasingly complex social arrangements and the second making theoretical points about law . The first track draws mainly from anthropologists, archeologists, sociologists, political scientists, and historians, and the second refers to arguments by analytical jurisprudents, legal positivists in particular . To prevent misunderstanding, I must emphasize at the outset that this is not a history of law . Nor do I mount a conceptual critique of legal positivist theories of law, which I do not challenge here on their own terms .15 Rather, as I outline a social view of law, I invoke a sampling of law in different times and places to cast doubt on the adequacy of legal positivist accounts, showing that they fail to capture the reality of law . At the conclusion I answer “What is law?” The basiCs

of

soCial life

We are energy consuming beings who reproduce and live within communities; we seek to satisfy our basic needs (food, shelter, safety, reproduction) and desires (cooperation, affection, material comforts, knowledge, power, etc .); we perceive and communicate through the symbolic mediation of language and concepts; we act informed by and based on culturally generated and conveyed ideas and beliefs; we exist within webs of relationships, pursue projects, and coordinate our activities with others . Ecological, technological, and economic resources and constraints are the materialist aspects of our existence .16 Equally important are the idealist aspects: knowledge, beliefs, values, concepts, and habits inform and shape our behavior . “This heritage of culturally generated past experience supplies most of the knowledge that each individual has at her or his disposal for coping with social and ecological realities .”17 Social development involves the interaction of materialist and idealist elements .18 Group size is a crucial factor in the development of social institutions .19 A hierarchy of decision making and implementation is required to coordinate activities 15 16 17 18 19

For a general critique, see Brian Z . Tamanaha, What is ‘General Jurisprudence?’ A Critique of Universalistic Claims by Philosophical Concepts of Law, 2 Transnational Legal Theory 287 (2012) . See Bruce G . Trigger, Distinguished Lecture in Archeology: Constraint and Freedom – A New Synthesis for Archeological Explanation, 93 American Anthropologist 551 (1991) . Id . 560 . Bruce G . Trigger, Understanding Early Civilizations (Cambridge University Press 2003) 13 . See Gregory J . Johnson, Information Sources and the Development of Decision-Making Organizations, in: Social Archeology: Beyond Subsistence and Dating, edited by Charles L . Redman,

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across many people .20 “The larger the group of people who interact, the more ramified their organizational structure needs to be . There is a limit to the number of people whom a leader can effectively control without intermediaries; the less the activity in question follows a fixed and preunderstood pattern and the more group decisions need to be made, the smaller the number of people one leader can directly control .”21 Groups over five hundred must have leaders, “and if they contain over a thousand, some kind of specialized organization or corps of officials to perform police functions .”22 Hence “social complexity increases with group size .”23 All large communities manage basic tasks: provide transportation, supply water, food and housing, produce and distribute goods and services, facilitate trade, manage waste disposal, provide effective communication, protect health and safety (injuries, disease, fire and natural hazards), coordinate behavior, and maintain internal order and defense against outsiders . Complex societies consist of institutions organized in terms of these and other functions .24 Over time societies have become increasingly layered with hierarchical organization and heterarchy,25 involving differentiated institutions to carry out these tasks and coordinate activities .26 The larger the group, the more ramified the organizational structure must be, with a combination of horizontal specialization (distributed power among units at the same level) and vertical specialization (hierarchy) . In a long-delayed and halting fashion, human history has undergone a massive increase in the size, density, and complexity of social groups and has developed thick networks of interaction across social groups .27 Law, as we shall see, takes on different forms and functions in connection with different degrees of social complexity, manifesting one way in simple societies and becoming something else in complex societies .

20 21 22 23 24 25 26

27

Many Jane Berman, Edward V . Curtain, William T . Langhorne, Nina M . Versaggi and Jeffrey C . Wansner (Academic Press 1978) 87–112 . See Johnson, Information Sources and the Development of Decision-Making Organizations, supra 100–104 . Raoul Naroll, A Preliminary Index of Social Development, 58 American Anthropologist 687, 690 (1956) . Id . Joseph A . Tainter, The Collapse of Complex Societies (Cambridge University Press 1988) 23 . See C . R . Hallpike, The Principles of Social Evolution (Clarendon Press 1986) 142 . See Henri J . M . Claessen, Was the State Inevitable? 1 Social Evolution & History 101, 101 (2002) . Heterarchy is a network or organization that is not structured in hierarchical terms, and can have various nodes of authority . The seminal article on complexity is Herbert A . Simon, The Architecture of Complexity, 106 Proceedings of the American Philosophical Society 467 (1962) . Using complexity as a measure of evolution is in tension with Darwinian theory because the latter does not have any built in progressive arrow . Random heritable variation and natural selection within an environment leads nowhere in particular, whereas increasing complexity is directional . See generally Kent V . Flannery, The Cultural Evolution of Civilizations, 3 Annual Rev of Ecology and Systematics 399 (1972); Julian H . Steward, Cultural Causality and Law: A Trial Formulation of the Development of Early Civilizations, 51 American Anthropologist 1 (1949) .

21

Insights about the Nature of Law from History

examPles

of

law

in

bands, Tribes,

and

Chiefdoms

“Anthropologists now believe that humans mostly lived without law for the vast majority of their time on earth,”28 asserts Scott Shapiro . This is too sweeping if attributed to anthropologists . “No society is without law,”29 in the view of prominent legal anthropologist Sally Falk Moore . Julius Lips wrote, “there is no people without fire, without language, without religion, or without law . Our social, religious, and legal concepts do not coincide with those of the primitives; what we must do is to find the correct equivalent for our modern institutions in primitive societies .”30 Hunter-gatherer groups were marked by a set of core characteristics .31 They lived in family-based groupings of twenty-five or so people, among a larger network of neighboring bands that gathered together and moved apart throughout the year, comprising tribes of several hundred members .32 They were egalitarian (except for gender relations33) and leadership was determined by personal qualities (prowess as a hunter or warrior, persuasive ability or demonstrated judgment, or being an elder) .34 A basic division of labor existed between males and females on food production and other tasks .35 Sharing and reciprocity within the camp was common . Anthropologists define property rights in terms of the right to possess, to use, and to exclude . There is a “wide measure of agreement” in the field that hunter-gatherers had property rights, some collectively and some individually held .36 “Movables – tools, weapons, cooking utensils, procured food, occasionally trees, and so on”37 were owned individually, reflecting the time, effort and access to materials required to make them . “Hence individual ownership forms the basis for individual gift-giving and for inter-band exchange systems that make possible farflung networks of reciprocity .”38 Five basic categories of property rights have been found in hunter gatherer societies: rights over land and water sources; rights over movables (tools, weapons, cooking pots, etc .); rights over killed game, harvested food, and

28 29 30 31 32 33 34 35 36 37 38

Shapiro, Legality, supra 35 (emphasis added) . Sally Falk Moore, Law as Process: An Anthropological Approach (Routledge & Kegan Paul 1978) 215 . Quoted in Morton H . Fried, The Evolution of Political Society: An Essay in Political Anthropology (Random House 1967) 16–17 . See Eleanor Leacock and Richard Lee, Introduction, in: Politics and History in Band Society (Cambridge University Press 1982) 1–20, 8–9 . See David Riches, Hunter-Gatherer Structural Transformations, Journal of the Royal Anthropological Institute 679 (1995) . See James G . Flanagan, Hierarchy in Simple ‘Egalitarian’ Societies, 18 Annual Review of Anthropology 245 (1989) . See James Woodburn, Egalitarian Societies, 17 Man 431 (1982) . Allen W . Johnson and Timothy Earle, The Evolution of Human Societies: From Foraging Group to Agrarian State 2nd ed. (Stanford University Press 2000) 44–45 . Alan Barnard and James Woodburn, Property, Power and Ideology in Hunter-Gathering Societies: An Introduction, in: Hunters and Gatherers 2: Property, Power and Ideology, edited by Tim Ingold, David Riches, and James Woodburn (Berg Publishers 1988) 4–31, 10 . Richard B . Lee, Reflections on Primitive Communism, in: Hunters Gatherers 1: History, Evolution and Social Change, edited by Tim Ingold, David Riches, and James Woodburn (Berg Publishers 1988) 252–268, 257 . Leacock and Lee, Introduction supra 9 .

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procured raw materials; rights over people (their labor, their sexual and reproductive capacity); and rights over sacred knowledge .39 Land rights of hunter-gatherers varied in connection with cultural views and ecological surroundings, though collective ownership by the band was common .40 Members of the band could collect and consume the fruits of the land, with certain restrictions; access to sacred sites was forbidden to women, children, and uninitiated men .41 Property rights vested in individuals or families were tied to concentrated resources like watering holes and fruit or nut groves .42 Many studies have found that bands would allow other bands reciprocal access to land (after permission was sought), and multiple studies have also found “that tribal areas are defined and subject to laws of trespass”43 – with punishment for violations up to and including death .44 Anthropologists draw a distinction between “immediate return” and “delayed return” hunters-gatherers . Those in immediate return systems consume the food they procure immediately . “They use relatively simple, portable, utilitarian, easily acquired, replaceable tools and weapons made with real skill but not involving a great deal of labor .”45 Delayed return systems among hunter-gatherers exhibit a cluster of four characteristics . They have “valuable technical facilities used in production: boats, nets, artificial weirs, stockades, pit-traps, beehives and other such artifacts which are a product of considerable labor and from which food yield is obtained gradually over a period of months or years .”46 They process and store food . They cull wild herds and tend wild food patches . And men have rights to bestow their female kin in marriage . The pivotal difference between these two types is that “delayed return systems depend for their operation on sets of ordered, differentiated, jurally-defined relationships through which crucial goods and services are transmitted .”47 Immediate return societies are more flexible and family units are less dependent on long-term commitments from others, with groups free to strike out on their own . In contrast, 39 40

41 42 43 44 45 46 47

Barnard and Woodburn, Property, Power and Ideology in Hunter-Gathering Societies, supra 14 . Leacock and Lee, Introduction supra 8 . One theory of land rights is “territorial exclusion is expected whenever resource density and predictability is sufficient to make the benefits of exclusive use outweigh the cost of defense .” Eric Alden Smith, Risk and Uncertainty in the ‘Original Affluent Society’: Evolutionary Ecology of Resource-Sharing and Land Tenure, in Ingold, Riches, and Woodburn, Hunters and Gatherers 1, supra 222–251, 244 . Annette Hamilton, Descended from Father, Belonging to Country: Rights to Land in the Australian Western Desert,” in Leacock and Lee, Politics and History in Band Society, supra 85–108, pp . 90 . Timothy Earle, Property Rights in the Evolution of Chiefdoms, in: Timothy Earle, Chiefdoms: Power, Economy, and Ideology (Cambridge University Press 1991) 72 . Hamilton, Descended from Father, Belonging to Country, supra 90; on land rights, see also Nicolas Peterson, Hunter-Gatherer Territoriality: The Perspective From Australia, 77 American Anthropologist 53 (1975) . See Robert Layton, Political and Territorial Structures Among Hunter-Gatherers, 21 Man18, 21–23 (1986) . James Woodburn, Egalitarian Societies, 17 Man 431, 432 (1982) . Id . 432–433 . James Woodburn, African Hunter-Gatherer Social Organization: Is it best Understood as a Product of Encapsulation?, in Ingold, Riches, and Woodburn, Hunters and Gatherers 1 supra 31–64, pp . 33 .

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23

“for people to build up, secure, protect, manage and transmit the delayed yields on labour, or the other assets which are held in delayed-return systems, load-bearing relationships are necessary .”48 The difference is reflected in more extensive property rights in delayed return societies . “The particular form the organization will take cannot be predicted, nor can one say that the organization exists in order to control and apportion these assets because, once in existence, the organization will be used in a variety of ways, which will include the control and apportionment of assets but which are not otherwise determined .”49 Larger settled groups are called chiefdoms,50 which emerged “around the world between about 1,000 and 7,000 years ago,”51 ranging in size from hundreds to tens of thousands of people and marked by hereditary social stratification and inequality .52 Complex chiefdoms were “strongly theocratic,” led by priest-chiefs, “there usually being a royal class ruling over other nobility, warriors, craftsmen, and a large population of commoners .”53 They interacted with neighboring chiefdoms in extensive networks of trade, mutual defense, and warfare . How chiefdoms came to be hierarchical and inegalitarian are open questions .54 Functionalist explanations point to the necessity for political leadership and coordination in economic activities when populations reach a certain size . Politically, this involves exerting force to keep internal order and lead battles against outsiders55; economic activities involve the intensification of subsistence production through major projects like irrigation works or terracing . Conflict explanations invoke competition over status, wealth, and power in larger settled communities, leading to consolidation by the winners of their advantage, perpetuated by property rights that pass through kin groups .56 Wealth derives from the acquisition of surplus production from commoners (redistributed to priests and warriors), as well as the accumulation of prestige goods (ritual objects, shells, obsidian, etc .) via long-distance exchange, which cements social and religious standing .57 Power is a function of wealth and social status, and is tied to the strength/size of the kin group .58

48 49 50 51 52

53 54 55 56 57 58

Id . Id . 33–34 . See Gil J . Stein, Heterogeneity, Power, and Political Economy: Some Current Research Issues in the Archaeology of Old World Complex Societies, 6 Journal of Archaeological Research 1 (1998) . Robert D . Drennan and Christian E . Peterson, Patterned Variation in Prehistoric Chiefdoms, 103 Proc. National Academy of Sciences 3960, 3960 (2006) . An excellent overview is Robert L . Carneiro, The Chiefdom: Precursor of the State, in: Grant D . Jones and Robert R . Kautz, The Transition to Statehood in the New World (Cambridge: Cambridge University Press 1981) 37–75 . See also Colin Renfrew, Beyond Subsistence Economy: The Evolution of Social Organization in Prehistoric Europe, in 20 Bulletin on the American Schools of Oriental Research 69, 79 (1974) . William C . Noble, Tsouharissen’s Chiefdom: And Early Historic 17th Century Neutral Iroquoian Ranked Society, 9 Canadian Journal of Archaeology 131, 132 (1985) . See Jerome Rousseau, Hereditary Stratification in Middle-Range Societies, 7 J. Royal Anthropological Institute 117 (2001) . See Robert L . Carneiro, A Theory of the Origin of the State, 169 Science 733 (1970) . See Earle, Property Rights in the Evolution of Chiefdoms, supra 71–99 . See Gary M . Feinman, Demography, Surplus, and Inequality: Early Political Formation in Highland Mesoamerica, in: Earle, Chiefdoms: Power, Economy, and Ideology supra 229–262 . Stein, Heterogeneity, Power, and Political Economy supra 6 .

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Leadership roles, bolstered by religious authority, harden into kin-based organization and social stratification that establish unequal access to resources .59 Only members of noble families could become a chief . A common arrangement saw layers of chiefs, with paramount chiefs at the top, major chiefs below, and sub-chiefs in each village . Chiefs held authority through religious ideology, by the possession of status goods, and by economic redistribution and wealth secured to them by property rights and exchange with neighboring chiefdoms .60 Property rights were fundamental to the power of chiefs and social stratification in chiefdoms . In the Hawaiian Islands, for example, “Since all lands were owned by the paramount chiefs, the allocation of community lands to his supporters and the further allocation of small subsistence plots to commoners formed the basis for requiring payments in labor and goods .”61 Chiefs kept the most fertile lands from which they obtained the greatest surplus for themselves . On their part, chiefs coordinated major projects that provided sufficient food supply, defended the community from external threats, and resolved internal disputes .62 I have thus far emphasized property rights in hunter-gatherer bands and chiefdoms, but other familiar legal provisions were present as well . In The Law of Primitive Man,63 Adamson Hoebel collected restrictions against theft, adultery, incest, assaults, and other delicts from hunter-gatherer bands and settled tribal groups around the world, focusing especially on responses to murder . Distinctions were made between accidental deaths, deaths from anger, and homicidal recidivists, the latter posing the gravest danger to the community . “The single murder is a private wrong redressed by the kinsman of the victim . Repeated murder becomes a public crime punishable by death at the hands of an agent of the community .”64 Often the decision to carry out the appropriate punishment was made by chiefs or a council of elders, or by consensus of the community, and carried out by the victim’s kin . What distinguishes these actions from pure personal retaliation is that punishment receives authorization .65 Prior approval lessens the potential for a tit-for-tat cycle of violence between families (feuds were circumscribed by rules66) . Decision-makers aimed to restore ruptured relations within the social group . Punishments ranged from fines, to labor obligations, to banishment, to death . In The Cheyenne Way, Hoebel and Karl Llewellyn described a series of murder and suicide cases (told by informants) among nineteenth century Cheyenne, who were nomadic, semi-pastoral tribal hunters . Here is a portion of their reconstructed legal provisions: “Killing within the tribe is a crime, and a sin, but it is no longer

59 60 61 62 63 64 65 66

See Johnson and Earle, The Evolution of Human Societies, supra 265–67 . See Timothy Earle, The Evolution of Chiefdoms, in: Earle, Chiefdoms: Power, Economy & Ideology supra 1–15 . Johnson & Earle, Evolution of Human Societies, supra 291 . Id . 92 . See Adamson Hoebel, The Law of Primitive Man (Harvard University Press 1954) 88–91, 276–277, 298–307 . Id . 88 . See also Richard G . Dillon, Capital Punishment in Egalitarian Society: The Meta Case, 36 Journal of Anthropological Research 437 (1980) . William Ian Miler, Bloodtaking and Peacemaking (University of Chicago Press 1990) .

Insights about the Nature of Law from History

25

even a fully recognized tort .”67 “The chiefs present in a body of Cheyenne at the time of a homicide shall have exclusive jurisdiction over the offense of killing, if they exercise jurisdiction; but, in the absence [pending?] of a ruling by the chiefs, a military society may take such [minor?] measures as they may deem required, including temporary banishment during a hunt [or even a general banishment?]”68 “The chiefs shall decree the banishment of the killer . Unless otherwise expressly provided in the decree, the banishment shall be for a period of five [ten?] years .”69 (After two years, if persuaded of penitence and no further risk, chiefs had the discretion to remit the banishment .) And various “exceptions and mitigations” were specified for killings in self-defense, accidental killings, provoked killings, and so forth .70 This was carried out without an organized legal system . Anthropologist Max Gluckman observed that there have been many societies with “no governmental institutions,” no officers to judge disputes or enforce decisions, yet they have “well known codes of morals and laws,” laws which address personal injury, property, inheritance, and marriage restrictions .71 why

This

Is law

Anthropologists differ on whether bands and chiefdoms had law . The answer depends on how one defines law . A scholar who adopts a definition of law as a command of the sovereign backed by publicly administered sanctions and enforced by courts, as Morton Fried did, would conclude that any social group below complex chiefdoms did not have law .72 Stanley Diamond concurred: “law is the instrument of civilization, of political society sanctioned by organized force, presumably above society at large, and buttressing a new set of social interests .”73 Many chiefdoms lacked “true government to back up legal decision by legalized force,”74 and chiefs usually did not have a monopoly on force .75 Hence they did not have law . In contrast, a conception of law that does not require an institutionalized system can locate law in hunter-gatherer bands and in chiefdoms . Hoebel’s formulation does that: “A social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recognized privilege of so acting .”76 Even if the victim’s kin carried out the punishment, as was frequently the case, this would still constitute 67 68 69 70 71 72

73 74 75 76

Karl Llewellyn and Adamson Hoebel, The Cheyenne Way (University of Oklahoma Press 1941) 166 . Id . Id . 167 . Id . 168 . Max Gluckman, The Peace in the Feud, 8 Past and Present 1,1 (1955) . See Morton H . Fried, The Evolution of Political Society: An Essay in Political Anthropology (Random House 1967) 3–26 . Elman Service takes an intermediate stance, recognizing that chiefdoms have basic elements of law, while lacking formal legal institutions . Elman R . Service, The Origins of the State and Civilization: The Process of Cultural Evolution (Norton 1975) 83–90 . Stanley Diamond, The Rule of Law Versus the Order of Custom, 38 Social Research 42,47 (1971) . Renfrew, Beyond a Subsistence Economy supra 73 . See Phyllis Kaberry, Primitive States, 8 British Journal of Sociology 224 (1957) . Hoebel, Law of Primitive Man, supra 28 .

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law if some form of community accord was required (via elders or accepted decision makers) . Legal positivists insist this is insufficient . Only organized legal institutions, only systems that combine primary and secondary rules, count as law . What supports this conclusion? Hart constructed his account of law by identifying three “defects” suffered by a regime of purely primary rules . First, the rules are uncertain, because “if doubts arise as to what the rules are or as to the precise scope of some given rule, there will be no procedure for settling this doubt, either by reference to an authoritative text or to an official whose declarations on this point are authoritative .”77 The second defect is that the rules are static: “There will be no means, in such a society, of deliberately adapting the rules to changing circumstances, either by eliminating old rules or introducing new ones .”78 “The third defect of this simple form of social life is the inefficiency of the diffuse social pressure by which the rules are maintained .”79 Without legal officials enforcing rules, “the waste of time involved in the group’s unorganized efforts to catch and punish offenders, and the smoldering vendettas which may result from self help in the absence of an official ‘monopoly’ of sanctions, may be serious .”80 Secondary rules remedy each defect . A ‘rule of recognition’ specifies the criteria for what are valid legal rules, solving uncertainty; ‘rules of change’ empower a body or person to enact new rules and abolish old ones; ‘rules of adjudication’ empower individuals to identify when rules have been broken and specifies the procedure to be followed .81 Secondary rules are “the heart of a legal system,”82 he concluded, because they make law work better . Notice, however, that the absence of secondary rules is a defect only if there is substantial uncertainty about the rules, if society is rapidly changing, and if existing enforcement mechanisms are not functioning . None of these conditions were typical of bands and chiefdoms . They were small homogeneous societies with shared understandings of their laws and what ought to be done in situations of disruption, with the response usually oriented to restoring relations within the community . Many of these groups, as an anthropologist described in connection with an Indian community, “had a strong feeling for the definition of rights and obligations, and recognized certain appropriate damages for any private delicts . Nevertheless this code was maintained not only without any court, but without any formal procedure at law .”83 Hart’s concept of law privileges forms of law necessary to fast changing heterogeneous societies (law in institutionalized form), discounting non-institutionalized legal forms suited to slow-changing, close knit communities . A genealogical approach holds that primitive legal provisions that resemble our own law in function, subject matter, and content are “law .” Systems of primary and secondary rules did not suddenly emerge fully formed, but rather evolved when additional institutionalization (secondary rules) became necessary as groups grew 77 78 79 80 81 82 83

Id . 90 . Id . Id . 91 . Id . Id . 92–95 . Id . 95 . Robert Redfield, Primitive Law, 33 University of Cincinnati Law Review 1,9 (1964) .

Insights about the Nature of Law from History

27

much larger, requiring coordination across many people and different types of activities . The coalescing legal system was a component of advancing social complexity . Preexisting primary legal norms provided the social basis around which institutionalized legal apparatuses would later congeal . Jurgen Habermas understood this . “As we learn from anthropology, law as such precedes the rise of the state and of political power in the strict sense, whereas politically sanctioned law and legally organized political power arise simultaneously .”84 “Archaic law” paved the way for and “first made possible the emergence of a political rule in which political power and compulsory law mutually constituted one another .”85 Other philosophers have echoed this position . In the Second Treatise of Government, John Locke wrote concerning bands (he mentioned American Indians as examples86), “the equality of a simple poor way of living, confining their desires within the narrow bounds of each man’s small property, made few controversies, and so no need of many laws to decide them, or variety of officers to superintend the process, or look after the execution of justice, where there were but few trespasses, and few offenders .”87 Full institutional support was not necessary for law, nor was it possible given the limited social complexity of bands, but basic laws still existed . Immanuel Kant presented the argument on logical grounds . “If it were held that no acquisition, not even provisional acquisition, is juridically valid before the establishment of a civil society,” Kant wrote, “then the civil society itself would be impossible . This follows from the fact that, as regards their form, the laws concerning Mine and Yours in a state of nature contain the same things that are prescribed by the law in civil society insofar as they are considered merely as pure concepts of reason .”88 What the state adds is a layer of public law that enforces preexisting private law of personal liberty and property rights . “The original community of the land and, along with the land, of the things on it (communio fundi originaria) is an Idea that has objective (juridical-practical) reality .”89 Based on this view, Kant condemned as “reprehensible” the colonial taking of land from indigenous people90 – a practice justified at the time on grounds that natives lacked law and therefore had no rights in property . The thread of familiar legal proscriptions from hunter-gatherer bands, to chiefdoms, to modern society, connects law across these very different social arrangements . This is why anthropologists naturally invoke legal terms like “juridical” and “rights” to characterize rules, sanctions, and procedures in these societies notwithstanding the absence of an institutionalized system . 84 85 86 87 88

89 90

Jürgen Habermas, Law and Morality, Tanner Lectures (1986) 263 . Id . 264 . These were not just empirical claims by Habermas, who as “primarily concerned with the clarification of conceptual relations .” 266 . John Locke, Second Treatise of Government (Hackett 1980 [1690]), 58 . Id . 57 . Immanuel Kant, Metaphysical Elements of Justice, 2nd ed., Translated by John Ladd (Hackett 1999 [1979]) 116–117 . Kant uses the term “provisionally” to represent the right to possess given property in a state of nature; he contrasts this with “peremptorily,” which is property rights in civil society backed by institutionalized enforcement . Id . 183 . Id . 65–66 .

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“law” wiThouT “legal sysTem” Legal positivists unthinkingly conflate “law” and “legal system .” “Such is the standard case of what is meant by ‘law’ and ‘legal system,’”91 Hart said merging the two . “Yet if they lack the essential features of the law,” Raz wrote, “they are not legal systems .”92 “Law” and “legal system” must be separated analytically . As social complexity increases with population density, bringing hierarchy and institutionalization, legal systems are necessary for law to function efficiently (as Hart asserted) . In small social groups, however, law effectively preserves persons and property and resolves disruptions without an organized system . This is what law has been for most of human existence and still is in remote areas around the world . Raz and Shapiro insist categorically that an organized system is essential to the nature of law, so whatever lacks this form does not count as law . Hart expressed a more flexible position, acknowledging that “There are no settled principles forbidding the use of the word ‘law’ of systems where there are no centrally organized sanctions”93 (though he did not embrace this usage) . The continuities in function and content between primitive law and modern law provide compelling grounds to consider them law, notwithstanding the absence of a system . Dropping the system as a criterion of law raises another old jurisprudential puzzle . Legal positivists have long thought it necessary to find a way to distinguish law from other normative orders . As Andre Marmor writes, “Law is not the only normative domain in our culture; morality, religion, social conventions, etiquette, and so on, also guide human conduct in many ways which are similar to law . Therefore, part of what is involved in the understanding of the nature of law consists in an explanation of how law differs from these similar normative domains, how it interacts with them, and whether its intelligibility depends on such other normative orders, like morality or social conventions .”94 Because the presence of an organized system helps distinguish law from these other normative orderings, discarding this as an element of law appears to make it impossible to draw the distinction . This is an artificial puzzle, however, the product of a poorly posed question . We have little trouble making these distinctions in our own societies using common sense conventional criteria . Difficulties arise only because law is formulated in abstract terms and then applied to other social contexts like hunter gatherers and simple chiefdoms .95 Sharp distinctions cannot be drawn between law and custom, morality, etiquette, religion, and so on, in these early social groups because low levels of social differentiation did not have the horizontal normative variations present at higher levels of social complexity . It was a primordial undifferentiated normative soup . If one points at the lack of differentiation to conclude, therefore, that law did not exist, then it would also follow that customs and morality did not exist because they too cannot be clearly distinguished – which reinforces the point that 91 92 93 94 95

Hart, Concept of Law, supra 5 . Hart Joseph Raz, Can There be a Theory of Law?, supra 328 . Hart, Concept of Law, supra 195 . Andrei Marmor, The Nature of Law, Stanford Encyclopedia of Philosophy, at http://plato .stanford . edu/entries/lawphil-nature/ This is not just a problem with respect to primitive societies . Shapiro grants that according to his formulation the rules of a professional golfing association (USGA) qualify as a form of law .

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these distinctions are inapposite . A genealogical approach does not need to make these distinctions, for it can identify whether law exists in early social groups by locating recognizably familiar legal proscriptions . Let me now make an essential clarification . When I assert that “law” existed in bands and chiefdoms, I am not saying that they saw this as “law” or that this is law in some objectively true universal sense . Law is our concept not theirs (as analytical jurisprudents also recognize); my claim is that what we think of as law was present despite the absence of a system, even if they had no conception of law or of property or murder in our terms . We cannot help but use our own concepts in these inquiries, and must proceed mindful toward not mistaking our categories and interests for theirs .96 law

and

inequaliTy

in

early CivilizaTions/sTaTes

Legal systems are a defining feature of early states .97 Pristine or primary states arose independently in several parts of the world – Mesopotamia, Egypt, Indus Valley, China, Peru, Mesoamerica – three to five thousand years ago .98 States had populations of a hundred thousand and more with a complex stratified society, including administrators, priests, warriors, manual workers, artisans, traders, slaves, etc . Centralized government was typically headed by a kingship enjoying religious support (though priests could be rivals for power), bolstered by religious and political ideologies that justified the social-political arrangement . It exercised territorial control over the surrounding area . There were layers of officials carrying out specialized functions, funded by taxation, tribute, or plunder . The leaders managed large projects (irrigation works, large public buildings and temples, monuments), conducted or controlled significant external trade (whether by the state itself or in private hands that were taxed), waged offensive and defensive wars, and had the capacity to exert force within society and to hold court .99 As with chiefdoms, scholars put forth functionalist and conflict theories of state formation .100 Functionalist theories focus on the needs of society in organic or holistic terms . They emphasize the benefits of the state in providing coordination, 96 This hearkens to the famous Gluckman-Bohannan debate of the 1950s over the potential misuse of Western legal categories to study other societies . The lesson of this exchange was that folk terms cannot be compared, but analytic categories abstracted from folk ideas and practices can be compared . See Sally Engle Merry, Transnational Human Rights and Local Activism: Mapping the Middle, 108 American Anthropologists 38,41 (2006) . 97 A leading work by Elman Service uses the presence of formal legal institutions to distinguish states from chiefdoms . Service, The Origins of the State and Civilization, supra 14–16 . For the features of early states, see Henry T . Wright, Recent Research on the Origin of the State, 6 Annual Review of Anthropology 379 (1977) Henri M . Claessen, The Internal Dynamics of the Early State, 25 Current Anthropology 365 (1984); Robert L . Carneiro, Cross-Current in the Theory of State Formation, American Ethnologist 756–770 (1987); Rita Smith Kipp and Edward M . Schortman, The Political Impact of Trade in Chiefdoms, 91 American Anthropologist 370 (1989) . 98 See Elman R . Service, Origins of the State and Civilization: The Process of Cultural Evolution (New York: Norton 1978) . See See Robert J . Wenke, Patterns in Prehistory: Humankind’s First Three Million Years, 4th ed. (Oxford University Press 1999) 331–336 . 99 Henri J . M . Claessen, Was the State Inevitable? supra 107–112 . 100 See Tainter, The Collapse of Complex Societies, supra 33 .

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order, protection, defense, food provision to offset bad harvests, markets, information and communication, public works and other projects for the common good . These theories “argue that complexity and stratification arose because of stresses impinging upon human populations, and were positive responses to those stresses .”101 Conflict theories, in contrast, see the state as managing individual and group conflict within society in the interest of power holders . “More specifically, the governing institutions of the state were developed as coercive mechanisms to resolve intra-societal conflicts arising out of economic stratification . The state serves, thus, to maintain the privileged position of a ruling class that is largely based on the exploitation and economic degradation of the masses .”102 A leading scholar of state development, Henri Claessen, remarked, “there is always found great inequality in (early) states . Some people, the happy few, are rich and powerful and all others, the great majority, are poor and powerless .”103 Law maintained this arrangement . Law in early states was intertwined with religion . Archeologist Bruce Trigger provides a few examples (citations omitted): Laws were often claimed to originate with the gods, who transmitted them to humans through the proclamations of rulers . The Aztec term for ‘laws’, nahuatilli, meant ‘a set of commands’ . Laws were a means by which human society was not only regulated but also aligned with a cosmic order that was profoundly hierarchical . The Babylonian word mesaru and the Egyptian m3’t referred both to the cosmic order and to legal justice . The Inka state claimed that subjects’ commission of crimes such as murder, witchcraft, theft, and neglect of religious cults threatened the health of the king and considered them sacrilege . Later evidence from China indicates that law (fa) was believed to have been created by superhuman beings in accordance with divine models and interests . To promote order on earth, rulers sought to suppress blood feuds and punish murder, treason, theft, incest, and many other forms of misconduct . Supernatural powers were believed to support the legal process by revealing guilt or innocence through oracles and ordeals and by punishing oath-breakers . The gods punished individuals whose crimes went undetected or unpunished by humans . The Babylonian king Hammurabi claimed to have assembled his law code at the command of the god Utu, or Shamas, who, because as the sun god he saw everything that humans did, was also the patron deity of justice . Promulgating this law code gave Hammurabi an earthly role analogous to that of Enlil, the chief executive deity of the Sumerian pantheon . The laws proclaimed by Aztec rule Mochtezuma I were described as ‘flashes that the great king…[had] sown in his breast, from the divine fire, for the total health of his kingdom . This claim referred to the divine powers that were implanted in the Aztec monarch at the time of his enthronement . The early Chinese believed that improper conduct was supernaturally punished .104

Another common characteristic of law in early states was the enforcement of social hierarchy and status differences . Hammurabi’s Code is replete with status distinctions . “If any one strikes the body of a man higher in rank than he, he shall receive sixty blows with an ox-whip in public .”105 Anyone who steals property from the court or temple is put to death, whereas thieves who steal from others suffer lesser punishments .106 A husband can sell his wife and children into forced labor to pay 101 102 103 104 105

Id . 34 . Id . 33 . Claessen, Was the State Inevitable?, supra 104 . Trigger, Understanding Early Civilizations, supra 221–222 . Hammurabi’s Code of Law, translated by L . W . King, available at http://eawc .evansville .edu/ anthology/hammurabi .htm #202 106 Id . #6–8 .

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off debt, though they must be set free in the fourth year .107 Runaway slaves must be returned to their master, and anyone who harbors them shall be put to death .108 The overall governing norm was rough equivalence (factoring in hierarchy), matching their sense of justice: an eye for an eye, a broken bone for broken bone, a tooth for a tooth (except that a tooth knocked out of a lower status person results in a fine) .109 “If a builder build a house for some one, and does not construct it properly, and the house which he built fall in and kill its owner, then that builder shall be put to death .”110 If the son of the owner is killed by the falling building, the builder’s son is put to death;111 if the owner’s slave is killed, the builder “shall pay slave for slave to the owner .”112 Modern states have status-based laws as well, notoriously exemplified by slave laws in the United States . Slave status was inherited through the mother (including mulatto offspring of the slave owner), making slavery a legal condition passed through generations .113 Whipping was the penalty for a slave striking or attempting to strike a white; second or third offenses were punishable by death .114 Attempts to escape (or advocating escape) were punishable by whipping, branding, cutting off an ear, or death; owners could seek compensation for lost property from the state when slaves were executed .115 Slaves were prohibited from owning cattle, horses, sheep, pigs, and boats, and were prohibited from engaging in commercial activities, so as not to compete with whites .116 There were sumptuary laws that restricted slaves to low status clothing .117 After slave laws were abolished, legally enforced status distinctions were perpetuated in Jim Crow laws on the books through the 1950s . There were also legally enforced ideological and political controls to maintain white dominance over blacks .118 Law is often presented by legal theorists as the hallmark of civilization . “Civilization is possible only with a very high degree of social cooperation and interdependence,” Shapiro writes, “which, in turn, is possible only when a community has the ability to regulate social relations efficiently and effectively . Law was a revolutionary invention precisely because it permitted this regulation .”119 This is an ideal107 108 109 110 111 112 113 114 115 116 117 118

119

Id . #117 . Id . #17–19 . Id . #196–197; #200–201 . Id . #229 . Id . #230 . Id . #231 . See William M . Wiecek, The Statutory Law of Slavery and Race in the Thirteen Mainland Colonies of British America, 34 William and Mary Quarterly 258, 262–263 (1977) . See Id . 273 . Id . 270 . Id . 276 . Id . 268 . A Mississippi statute still on the books in the 1950s read: “Any person…who shall be guilty of printing, publishing or circulating printed, typewritten or written matter urging or presenting for public acceptance or general information, arguments or suggestions in favor of social equality or of intermarriage between whites and negroes, shall be guilty of a misdemeanor and subject to fine of not exceeding five hundred (500 .00) dollars or imprisonment not exceeding six (6) months or both .” See Examples of Jim Crow Laws, The Jackson Sun, at http://www .ferris .edu/ jimcrow/links/misclink/examples/ Shapiro, Legality, supra 36 .

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ization emphasizing the functional benefits law provides while shunting to the margins its oppressive aspects backed by force, painting the former as central and the latter as contingent, although they are constant companions in the history of law . Legal theorists discuss openly oppressive legal systems, like Nazi Germany, slaveholding America, apartheid South Africa, or contemporary authoritarian regimes,120 as if they are aberrant manifestations of law . History suggests, however, that oppression in varying ways and degrees, particularly in service of hierarchy, is a common aspect of state legal systems . Philosopher David Hume did not sugarcoat the reality that “Almost all of the governments which exist at present, or of which there remains any record in story, have been founded originally either on usurpation or conquest or both, without any pretense of a fair consent or voluntary subjection of the people .”121 Jurist Rudolph von Jhering observed, “Whoever will trace the legal fabric of a people to its ultimate origins will reach innumerable cases where the force of the stronger has laid down the law for the weaker .”122 Law in states is an organized system of coercive power and individuals and social groups naturally seek to utilize this power to serve their ends . A dominant aspect of law throughout history is the service of political and economic power, social stratification, and inequality . Adam Smith, the apostle of capitalism, provided an evolutionary account of social-legal development from hunter-gatherers, to chiefdoms, to the state, highlighting the connection between law, property, and inequality .123 Once people settled and raised animals, distinctions arose between rich and poor . Property ownership generates disputes over possession, inheritance, marriage settlements, and transactions .124 The wealthier members of the community gain eminence and political authority, which in time becomes hereditary .125 [When] some have great wealth and others nothing, it is necessary that the arm of authority should be continually stretched forth, and permanent laws or regulations made which may ascertain the property of the rich from the inroads of the poor, who would otherwise continually make incroachments upon it, and settle in what the infringement of this property consists and in what cases they will be liable to punishment . Laws and government may be considered in this and indeed in every case as a combination of the rich to oppress the poor, and preserve to themselves the inequality of the goods which would otherwise be soon destroyed by the attacks of the poor, who if not hindered would soon reduce the others to an equality with themselves by open violence. The government and laws hinder the poor from ever acquiring the wealth by violence which they would otherwise exert on the rich; they tell them they must either continue poor or acquire wealth in the same manner as they have done . Settled laws therefore, or agreements concerning property, will soon be made after the commencement of the age of shepherds .126

120 See generally David Dyzenhaus, Hard Cases in Wicked Legal Systems: Pathologies of Legality (Oxford University Press 2010); Rule by Law: The Politics of Courts in Authoritarian Regimes, edited by Tom Ginsburg and Tamir Moustafa (Cambridge University Press 2008) . 121 David Hume, Political Essays, Charles W . Hendel, ed . (1953) 47 . 122 Rudolph von Jhering, Law as a Means to an End, Issack Husik trans . (1914) 185 . 123 See Andrew Skinner, Adam Smith: Society and Government, in: Elspeth Attwooll, ed . Perspectives in Jurisprudence (University of Glasgow Press 1977) 195–220 . 124 Id . 203 . 125 Id . 203–204 126 Adam Smith, Lectures on Jurisprudence, edited by R . L . Meek, D . D . Raphael, and P . G . Stein (Indianapolis: Liberty Fund 1982) 208 (emphasis added) .

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Smith gave economic factors primacy in the emergence and shaping of law,127 though he also recognized the importance of ideological factors, whereby noble descent entitled chiefs to their rank and property duly enforced by law .128 It is widely assumed that the shift from status-based societies to modern liberal legal systems with freedom of contract and property rights creates a society free of coercion, but what has changed are the underlying bases for coercion . Whether this represents an actual reduction of coercion, Max Weber observed, “depends entirely upon the concrete economic order and especially on the property distribution .”129 In market systems, owners of the means of production (employers) and those with capital utilize legal empowerment to their advantage, dictating the terms of employment relationships with people lacking property . “A legal order which contains ever so few mandatory and prohibitory norms [lacking restrictions on what employers can impose] and every so many ‘freedoms’ and ‘empowerments’ can nonetheless in its practical effects facilitate a quantitative and qualitative increase not only of coercion in general but quite specifically of authoritarian coercion .”130 The influence of capital interests on law was plain at the turn of the twentieth century when criminal conspiracy laws and antimonopoly statutes were applied to squelch labor actions, courts issued labor injunctions against strikes and boycotts, and public and private police forces killed and imprisoned strikers .131 Although less visible today, the influence of capital in securing legal advantages remains in a multitude of ways . Attention to the actual workings of law across time and place reveals that legal systems and inequality are linked, the former helping constitute the latter . State legal systems are an aspect of functional differentiation within social complexity, taking institutionalized form to organize the application of coercive power of polities . This power is used to good and bad ends . Analytical jurisprudents who write about the nature of law emphasize that legal institutions serve social functions . Critical theorists emphasize that law entrenches, normalizes, and enforces hierarchy and inequality within complex societies, assisted by ideological support from cultural, religious and political beliefs . The mainstream and the critical view each emphasize one side of law, downplaying the other . A full understanding sees both sides of law . The legal Coverage

of

early sTaTes

Legal proscriptions commonly found in early states can be broken down into eight rough (overlapping) categories: laws in the interest of the state itself; laws enforcing social hierarchy; religious-supernatural laws; laws regulating sex; laws involving personal injuries; laws protecting property; laws controlling labor; laws involving trade .132 Here are examples of each: 127 See Andrew Skinner, Adam Smith: Society and Government supra 128 Id . 215–216 . 129 Max Weber, Economy and Society, vol. 2, edited by Guenther Roth and Clause Wittich (University of California Press 1978) 730 . 130 Id . 731 . 131 See generally Michael Mann, The Sources of Social Power: Volume 2: The Rise of Classes and Nation-States, 1760–1914, 2nd ed. (Cambridge University Press 2012) Chapters 17 and 18 . 132 For examples, see Chapter 11, “Law”, in Trigger’s Understanding Early Civilizations supra 221– 239, along with the other sources cited earlier . The categories and summaries are my own .

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1) Maintaining the state apparatus (including royalty and officials) are laws securing revenues (rents, taxes, customs duties); laws punishing treason, disloyalty, or disobedience; and laws requiring corvee (obligatory unpaid labor) . 2) Enforcing social hierarchy are laws on proper conduct toward superiors; sumptuary laws restricting food consumption, clothing, and possession of luxury items by social rank; status based legal distinctions in treatment between nobles, warriors, commoners, women, children, and slaves . 3) Religious-supernatural laws deal with witchcraft, sacrilege, violation of religious prohibitions, failure to meet religious obligations, and supplying human sacrifices, as well as mystical-legal ordeals, oracles, and punishments . 4) Sexual regulation include legal prohibitions against incest, adultery, rape, seduction, sex outside of marriage, and laws about marriage and divorce (including age restrictions, who has the right of permission, dowry, which family the new spouse lives with, grounds for divorce, who the children belong to) . 5) Personal injury laws deal with killings (intentional and accidental), assaults or wounding in attacks, accidental injuries, illnesses and ill-fortune attributed to witchcraft, and kidnapping, as well as feuds . 6) The preservation of property includes laws against robbery and theft (personal items, livestock, etc .), trespass, damage to property, disputes over ownership of personal property and land (including use rights), and inheritance law . 7) Laws regulating labor cover slave ownership and rules about the disposition, treatment, and return of slaves, restrictions on who can do what types of work, enforcement of indentured or debt servitude, and property rights in the labor of others (wives and children, serfs, servants) . 8) Laws relating to trade address breaches of agreements between merchants, dishonest traders defrauding buyers, the selling of faulty goods or non-delivery, payment of debts, and restrictions that protect guilds . These categories of legal regulation extend as far back as early states several thousand years ago . That we regulate most of same categories today suggests there are certain constants of social life in large polities . They include enforcing social and economic hierarchy, control over sexuality and offspring, rules for economic exchange and debt, protection of property, regulation of labor, protection from physical injury, and ideological enforcement (i . e . religion, political legitimation) . These legal constants flow from the needs of social-sexual beings living in large groups, who require food, safety, and shelter and pursue material comforts, who require cooperation and coordination with others, who are threatened by others, and who strive to make sense of the world and find meaning in their lives . Another constant is that the state apparatus uses law to protect and consolidate its own power; once states and legal systems exist, they jealously preserve their own interests apart from the social interests they advance . H . L . A . Hart suggested there is a “minimum content of natural law” that exists in all societies . The human condition (vulnerability, approximate equality of capacities, limited altruism, limited resources, limited understanding and will) requires basic legal elements for the ordered maintenance of social life, he argued, including the protection of persons, property, and promises .133 The legal coverage of early 133 Hart, The Concept of Law, supra 189–195 .

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states is consistent with Hart’s observation . But four additional legal constants he failed to mention might be added (at least in larger social groups): legal regulation of sexual relations, legal regulation of labor of others, legal enforcement of hierarchy, and maintenance of the power of the legal system itself and the polity to which it is attached . Hart’s legal minimums focus on functional benefits, whereas the list of legal constants includes not just its benefits for social groups but also the oppressive aspects of law – including male patriarchy, hierarchical domination, and the power of legal coercion . A few changes have taken place over time with respect to this list . Magic and religion were intertwined with law up through the medieval period: priestly figures declared norms in prophesies or oracles, agreements were sealed with sacred oaths, violations of rights were punished by supernatural sanctions (curses), and guilt was determined by omens and ordeals .134 With the advance of legal institutionalization and rationalization (and the Enlightenment and rise of science) these irrational elements of law diminished . Though a range of theocratic arrangements still exist, religious institutions in liberal societies have been deprived of previous state enforced orthodoxy, though they retain special privileges in civil and criminal law,135 and still enjoy significant financial support via direct subsidies or non-taxation . Another difference is that law in early states directly enforced hereditary social status, whereas in liberal societies hierarchy is largely based on wealth and occupational status supported by property rights and special privileges available to those who can afford them . Additional differences between early states and most states today (liberal and non-liberal) involve growth in the size and scopes of the first and last categories, dealing respectively with the government and the economy, which now dwarf the other categories . Entirely new realms of activities in society are undertaken by the modern administrative state, much of it carried out through law, including constructing the government itself and its purposive pursuits . Laws dealing with economic activities have also ballooned enormously . Laws relating to trade provide the infrastructure for capitalism, including the creation of corporations, finance and banking systems, money (“legal tender”), and regulation and support of the market . Modern law has undergone a shift in activity from law in earlier ages . After legal institutions were established that enabled state legal officials to create law at will, law diversified to become a multifunctional instrument backed by coercion that could be used for any purpose . In complex societies this protean-plus-coercion capacity has made law a favored mechanism by state officials and other actors for getting things done . When societies became denser and larger, more varied activities of greater numbers of interdependent people had to be coordinated . Matters like transportation, food provision, housing, communication, education, health and safety protection, and markets, needed to be managed across extensive ranges . The state uses legal mechanisms to set up institutions and direct their activities and to carry out initiatives . Invoked by groups, individuals, corporations and governments to achieve their 134 See Georges Gurvitch, Magic and Law, 9 Social Research 104 (1942); Weber, Economy and Society, vol. 2, supra 647, 761–62, 765, 768–770, 809–831 . 135 Churches may benefit from certain immunities, and from the reluctance of secular authorities to penetrate church authority, as reflected in the delayed and minimal prosecutions of priests and churches for child sexual abuse .

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purposes, law has become an actor in social arenas engaging in projects in a manner that extends far beyond maintaining social order and solving moral problems . emPires

and

law

Empires are incorporative states that exercise control over other societies through military force: Roman, Byzantine, Persian, Mongol, Mughal, Ottoman, and British Empires, to name a few of the best known .136 They are economically motivated, seizing labor (slaves), material resources (gold, silver, etc .), and taxes and tributes .137 Owing to the difficulty of controlling large territories of people with diverse language and cultures, empires typically allowed a substantial degree of local autonomy after pacifying the subject populace . A relatively small contingent of imperial administrators and an armed force ruled, relying on local elites to maintain order and collect taxes, allowing local laws to continue undisturbed except when they clashed with imperial interests . Empires bare the extractive side of states, as extortion rackets that offer protection from plundering – by the state itself and others – in exchange for taxes and tribute .138 The East India Company (EIC), a private corporation that ruled major swaths of India from the mid-eighteen to the mid-nineteenth century, was a particularly naked example of the connections between empire, law, and economic interests .139 It was “the sole British administrative, judicial, and commercial representative in India during this period . The monopolistic company acted as the upholder of British interests and served as the vehicle for territorial expansion on the subcontinent .”140 EIC supplemented revenues from its commercial activities (a legal monopoly) with substantial territorial revenues it took over from the Mughal emperor . EIC set up a dual court system, one for employees applying English law, a second for natives applying Hindu and Muslim personal laws, and Islamic criminal law .141 Native courts were prohibited from trying British citizens; the expense of coming to Calcutta where the English court was located meant that Indians in the interior were “extremely vulnerable to European violence and exploitation in both civil and criminal matters .”142 British colonial practices are telling because they saw themselves as a rule of law society spreading civilization to backward lands, yet law served as the enforcer of 136 For a history of the world told through empires and the commerce they generated, see J . R . McNeill and William H . McNeill, The Human Web (New York: Norton 2003) . 137 See generally Carla M . Sinopoli, The Archeology of Empires, 23 Annual Review of Anthropology 159 (1994) . 138 See Charles Tilly, War Making and State Making as Organized Crime, in: Bringing the State Back In edited by Peter Evans, Dietrich Rueschemeyer, and Theda Skocpol (Cambridge University Press 1985) . 139 See L . S . Sutherland, The East India Company in Eighteenth Century Politics, 17 Economic History Review 15 (1947); Amar Farooqui, Governance, Corporate Interest and Colonialism: The Case of the East India Company 35 Social Scientist 44 (2007) . 140 Huw V . Bowen, The ‘Little Parliament’: The General Court of the East India Company, 1750– 1784, 34 Historical Jouranl 857, 858 (1991) . 141 Elizabeth Kolsky, Codification and the Rule of Colonial Difference: Criminal Procedure in British India, 23 Law and History Review 631, 641 (2005) . 142 Id .

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imperial interests . “Colonial rule created new ‘crimes,’ many of which were offences against the imposed structure of colonial management .”143 To facilitate the acquisition of land by settlers for plantations and mining, preexisting collective property rights of the community were abolished and replaced with individually held titles that could be sold or leased (benefiting savvy traditional elites while dispossessing the collective) .144 A standard colonial legal initiative was to impose Hut taxes or head taxes on natives to secure revenues to run the colony . To pay taxes owed, natives were forced to seek employment in the money economy, supplying labor for settler farms growing export crops .145 A colonial administrator in Rhodesia lamented in 1935 that the District Officer came into contact with the African population “almost only in the guise of public authority and power – that is as the avenging magistrate and the tax collector .”146 Labor laws were also exploitative . In Papua New Guinea, for example, taxes forcing native people to seek paid work were backed by a indentured servitude system that locked plantation workers into multi-year terms of employment enforced by criminal sanctions against “desertion .”147 Colonial law is an unadorned instrument of extractive rule, preserving the colonial state and advancing imperial economic enterprises, while providing scant services to the native public . The state legal system in many colonial settings initially made little effort to maintain social order outside colonial towns, leaving those tasks to indigenous institutions . This did not contravene rule of law ideology, at least on the surface . Indentured servitude contracts imposed legal obligations on both parties, plantation owners and laborers, although natives “had, in practical terms, almost no access to courts to enforce his side .”148 And while they suffered significant legal disadvantages, indigenous people were in limited ways occasionally able to invoke law against colonial government, settlers, missionaries, and local elites .149 An unintended consequence of empires was a mish mash of legal hybridity and pluralism, through the juxtaposition of law from one society onto another with a different social-political-economic arrangement, transforming both law and society in myriad ways .150 Western common law and civil law systems spread around the globe through imposition by colonial powers (and in some cases voluntary copy143 David Killingray, The Maintenance of Law and Order in British Colonial Africa, 85 African Affairs 413 (1986) . This article provides an excellent look at the distorting impact of colonial policies . 144 See Martin Chanock, The Law Market: The Legal Encounter in British East and Central Asia, in: European Expansion and Law, edited by W . J . Mommsen and J . A . de Moor (Berg Publishers 1992) . 145 See John Lonsdale and Bruce Berman, Coping with the Contradictions of the Colonial State in Kenya, 1895–1914, 20 Journal of African History (1979) . 146 Quoted in Killingray, The Maintenance of Law and Order in British Colonial Africa, supra 411 n .1 . 147 See Peter Fitzpatrick, Law and Labor in Colonial Papua New Guinea, in: The Political Economy of Law: A Third World Reader, edited by Yash Ghai, Robin Luckham, and Francis Snyder (Oxford University Press 1987) 130–143 . 148 Id . 131 . 149 See Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge University Press 2002) . 150 See generally Brian Z . Tamanaha, A General Jurisprudence of Law and Society (Oxford University Press 2001) 112–120; Sally Engle Merry, Law and Colonialism, 25 Law & Society Review 889 (1991) .

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ing) . Religious law also spread with empires and trade lanes they opened up; Islamic Law, initially arising in Arabia, ultimately stretched from North Africa through the Near East, reaching Indonesia . Empires also produce law-carrying diasporas: people fleeing subjugation or moving to the economic center of the Empire seeking opportunities; groups of emigrants who form communities in new lands bring legal understandings from home (especially marital and inheritance), at least for a time . Legal transplantation, serving imperial interests, is prominent in the history of law around the world .151 Legal theorists construct theories of law assuming law is a mirror of society that maintains social order . In imperial contexts, however, law was exploitative, clashed with prevailing social norms, and was avoided by the populace . Raz’s assertion that law “provides the general framework within which social life takes place” was belied by colonial law, and its legacy continues to this day in mismatches between law and social life in many societies . According to Hart, a legal system “exists” when two conditions are met: the bulk of citizens obey primary rules and legal officials accept secondary rules . In colonial contexts, however, the native populace – which often did not speak the imperial language in which the law was set forth and carried out – was largely hostile to or ignorant of the primary rules imposed by colonial legal system . Legal systems, as colonial law shows, are complexes of coercive power that do things in the name of law with no necessary or inherent connections to the society they purport to rule . Legal institutions can operate contrary to prevailing social norms and interests when legal officials pursue an agenda different from that of the surrounding social group . What is most problematic about legal positivist conceptions is that their built-in functionalist take on law downplays the extent to which legal systems can be a “Gunman writ large,”152 an apt description of many legal regimes in history and some legal systems today . “If we want to explain what makes the law the law, we must see it as necessarily having a moral aim,”153 Shapiro insists .154 Only a theorist who ignores the history of law and strips away much of what law does would arrive at the position that law is a planning system that solves hard moral problems . Consider yet another counter-example, the native Aro Confederacy that ruled large parts of Nigeria in the 18th and 19th centuries, keeping peace and managing an extensive trade network, while maximizing revenues; in response to trans-Atlantic slave trade, “Judicial penalties that formerly had taken the form of beatings, payment of compensation or exile, for example, were now converted to enslavement,”155 handing over prisoners to slave traders in return for payment . A clear-eyed view suggests that legal institutions exert coercive power for all kinds of purposes, to advance all sorts of aims, ranging from moral, to amoral, to immoral . 151 See Alan Watson, The Evolution of Law (John Hopkins University Press 1985) . 152 For a critique of functionalist assumptions by legal positivists, see Brian Z . Tamanaha, Socio-Legal Positivism and a General Jurisprudence, 21 Oxford J. Leg. Stud. 1 (2001) . 153 Shapiro, Legality, supra 215 . 154 Shapiro’s view of the moral function of law appears to commit him to an weak anti-positivist position (or weak natural law position), although he lacks a moral theory to provide criteria to determine what counts as moral . See William A . Edmundson, Why Legal Theory is Political Philosophy, Legal Theory, February 2014 . 155 Martin Klein, The Slave Trade and Decentralized Societies, 42 Journal of African History 49, 59 (2001) .

Insights about the Nature of Law from History

The ConsolidaTion

of

39

law-sTaTe

The standard unified vision of state law exercising a monopoly of legitimate power – reflected in Raz’s theory of law – was a late entry on the historical stage and might already be passing . Law in medieval Europe was a jumble of different laws and institutions occupying the same space, lacking any overarching hierarchy or organization .156 Law was the product of social groups and associations, each forming a special legal order “either constituted in its membership by such objective characteristics of birth, political, ethnic, or religious denomination, mode of life or occupation, or arose through the process of explicit fraternization .”157 These forms of law included unwritten local customary law; residual Roman law; codified Germanic customary law; feudal law; municipal law; the law merchant (lex mercatoria); the law of specific guilds; canon law of the Roman Catholic Church; royal legislation, and revived Roman law developed in universities . Various types of courts coexisted: manorial courts staffed by barons or lords of the manor; municipal courts staffed by burghers (leading citizens); merchant courts staffed by merchants; guild courts staffed by members of the guild; church courts staffed by bishops and archdeacons; and royal courts staffed by the king or his designees . “The demarcation disputes between these laws and courts were numerous .”158 Not only did separate systems and bodies of law coexist, and compete, but also under the “personality principle” a single court could apply different bodies of law .159 As medievalist Walter Ullmann remarked, “This complex mosaic of legal systems presented many difficulties to the application of abstract legal rule to the given set of concrete circumstances .”160 A truism about law, Shapiro contends: “In every legal system, some person or institution has supreme authority to make certain laws .” This statement resonates with lawyers today, but would not have been self-evident in the medieval age and other times and places when local customary law – no final authority, competing versions – was a primary form of law .161 “Every legal system has institutions for changing the law” – another Shapiro truism . However, Max Weber observed, customary laws “were at first not conceived as the products, or even the possible subject matter, of human enactment…As ‘traditional’ they were, in theory at least, immutable . They had to be correctly known and interpreted in accordance with established usage, but they could not be created .”162 Also ill-fitting to medieval times are Joseph 156 See generally Thomas Fergus and William Gordon, European Legal History (2000); Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition (1983) . 157 Weber, Economy and Society, vol. 2, supra 695 . 158 Raoul van Caenegem, Legal History: A European Perspective (1991) 19 . 159 See van Caenegem, Legal History supra 117–118; Patrick Geary, The Myth of Nations: The Medieval Origins of Modern of Europe, (Princeton University Press, 2002) 152–154 . 160 Walter Ullmann, The Medieval Idea of Law (1969) 71 . 161 The assertion that every legal system has a supreme authority is also problematic when applied to the contemporary European Union . A noted theorist observed, “For the most part national courts have not accepted that EU Law is the supreme law of the land . But nor have they simply assumed that national constitutional law is the supreme law of the land .” Mathias Kumm, How Does European Union Law Fit into the World of Public Law? in: Political Theory of the European Union, edited by Jurgen Neyer and Antje Wiener (Oxford University Press 2011) 127 . This assertion applies not only to the substantive law but also to which courts have final say . 162 Weber, Economy and Society, vol. 2., supra 760 .

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Raz’s essential features of law, particularly his assertion that “they claim supremacy over all other normative systems in society .” This runs contrary to the long-standing medieval principle “special laws were to prevail over the general law of the land .”163 Law was personal, not territorial, under which “every man was entitled everywhere to be judged by that tribal law by which he ‘professed’ to live .”164 No single legal regime held supremacy over all others (Popes claimed supremacy for canon law, though not entirely effectively165) . “The result was the coexistence of numerous ‘law communities,’” Weber wrote, “the autonomous jurisdictions of which overlapped, the compulsory, political association being only one such autonomous jurisdiction in so far as it existed at all .”166 What legal philosophers assert as self-evident truths about law, as we can see, are contemporary assumptions based on relatively recent developments in human history . Raz unselfconsciously declares, “Suffice it to say that the truth of these theses of the general theory of law is not contingent on existing political, social, economic, or cultural conditions, institutions, or practices .”167 That is wrong . Theories of the nature of law produced by analytical jurisprudents are contingent at their core: their assumed paradigm of law – 20th century state law – was the product of existing political, social, economic, and cultural factors . Law in earlier periods did not match the state law paradigm, and law continues to evolve in form and function . The consolidation of the state system across Europe took several centuries to achieve .168 Monarchs had first to establish their dominance over rival sources of political and military power .169 Internally this meant pushing the church out of political affairs and pacifying major nobles by buying or co-opting their allegiance and denuding their military capability; externally this meant absorbing neighboring territories through alliances (royal marriages) or martial adventures and defending borders against incursion from other monarchs . State building monarchial officials established administrative apparatuses that oversaw tax collection, law enforcement, and judging . Previously the main source of funding for monarchs had been revenues from their feudal holdings, special customs, and fees collected by royal courts; high officials were members of the king’s household staff; many offices were privately owned, with occupants deriving rents from their official activities . A pivotal bureaucratic development was to create a separation between public and private positions, with public monies paying people holding public offices .170 The Reformation diminished the grip of the Church, allowing monarchs in Protestant countries to seize church assets and restrict ecclesias-

163 164 165 166 167 168 169

Id . 852 . Id . 696 . Id . 830 . Id . 697 . Raz, Between Authority and Interpretation, supra 92 . See Martin van Creveld, The Rise and Decline of the State (Cambridge University Press 1999) . For a detailed account of these developments, see Michael Mann, The Sources of Social Power: Volume 1: A History of Power from the Beginning to AD 1760, 2nd ed. (Cambridge University Press 2012); Michael Mann, The Sources of Social Power: Volume 2: The Rise of Classes and Nation-States, 1760–1914, 2nd ed. (Cambridge University Press 2012) . 170 See Mann, The Rise of Classes and Nation-States, supra Chap . 13; S . E . Finer, The History of Government: Empires, Monarchies, and the Modern State (Oxford University Press 1999) 1266, 1298–1299 .

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tical courts (not deprived of jurisdiction in England until the 1850s171) . The Treaty of Westphalia (1648) divided Europe into separate territories, confirming control by sovereigns over internal affairs . Consolidation of law in the state required absorbing coexisting bodies of law, enacting territory-wide codes, creating legal offices paying regular income from the state, and creating and staffing courts not beholden to local magnates . The institutionalization of law in the state also involved building the legal profession, training people in specialized legal knowledge and legal practices (holding guild monopolies) . Professional police forces were created in the nineteenth century (separate from the military) at the national, regional and municipal levels and state-run prisons were built .172 Only when a full complement of bodies of law and effective legal institutions were created and consolidated in state offices, rationalized, and hierarchically organized, did the unified vision of the law-state approximate reality . This involved two developments: the functional differentiation and institutionalization of law and the lodging of this complex of legal institutions within the political structure of the state . The crucial point is that the unified vision of the law-state with a monopoly over law is an ideological claim that must be achieved and cannot be assumed to hold . Law past and present on the ground is altogether messier . Multiple factors can produce this: external conquest that does not suppress prevailing local law, diasporas, different ethnic or religious communities with their own legal norms and institutions living side-by-side within a territory, weak state legal institutions, insufficient people with training in legal knowledge and practices, legal institutions infused by corruption or powerful social interests, and more . The state legal system of Afghanistan today, for example, claims supreme authority, but state legal institutions function poorly and have scant reach outside major cities; traditional tribunals or Taliban courts sit in the countryside, the former as alternatives to the state and latter battling the state outright .173 Even modern megacities, from immigrant neighborhoods in the West to the favelas of Sao Paolo, have pockets where community forms of law (including property holding and transfers and policing) matter more than state law . Viewed historically, legal systems involve complexes of legal norms and institutions that take different forms and vary in efficacy and reach, vying for authority in social arenas, some attached to the state, some not . When legal institutionalization thickens and ramifies within the state, differentiating horizontally (among different legal functions: policing, prosecuting, lawyering, judging, punishing, imprisoning) and vertically (higher levels), and develops the capacity to effectively exert power, it becomes a normalized aspect of and background infrastructure for social-political-economic life . But whether this occurs and the shape it takes depend on the 171 R . B . Outhwaite, The Rise and Fall of the English Ecclesiastical Courts, 1500–1860 (Cambridge University Press 2006) . 172 See Mann, The Rise of Classes and Nation-States, supra 404; see van Creveld, The Rise and Decline of the State, supra . 173 See Barfield, Thomas 2006: Neamat Nojumi, and J . Alexander Their, The Clash of Two Goods: State and Non-State Dispute Resolution in Afghanistan, (2006), at: http://www .usip .org/files/ file/clash_two_goods .pdf

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unique history and circumstances of every society . In many places it remains incomplete . TransnaTional ConneCTions – law beyond

The

sTaTe

World history has often been told as the accretion of connections between societies through the combined effects of conquest by empires and expansion of trade, technological improvements in transportation and communication, population growth, and movement of people from rural areas to cities and from one land to another in the pursuit of a better life .174 State systems and the global capitalist economy have grown thick connective branches that are maturing into transnational and global networks, weaving additional layers of complexity through human society .175 Imperial expansion is no longer predominant, but the other factors are galloping ahead . The geography of social-political space is changing from local to global levels .176 The consolidation of the state system appears to have peaked in the mid-twentieth century, marked by a centralizing dynamic tying together economic, political and legal activities within nation states . Now this is pulling apart and going in different directions beyond the state . The nation state remains dominant territorially in political-legal terms (except in chronically weak or war-torn states), while significant political-legal power has devolved to regional (European Union, NAFTA, and ASEAN) and international bodies . Corporations have emerged as major global actors, with production and distribution networks spanning multiple countries . World cities/regions (London, New York, Los Angeles, Paris, Hong Kong, Frankfurt, Amsterdam, Tokyo, Shanghai, etc .) have become nodes in global capitalism – the location for production facilities, skilled and unskilled labor, banking and finance, markets and consumers for products and services, transportation hubs, legal and accounting services, all the stuff modern capitalism requires to function .177 Municipal and national governments increasingly assume the role of facilitators of local and global commerce,178 and engage in economic activity through partnerships with developers and tax incentives for corporations, or by creating quasi-private entities that invest in or directly conduct economic pursuits .179

174 See McNeill and McNeill, The Human Web supra; William J . Bernstein, A Splendid Exchange: How Trade Shaped the World (Grove Press 2008) . A clear and concise theoretical account of the global economic system can be found in Immanuel Wallerstein, World Systems Analysis: an Introduction (Duke University Press 2004) . 175 Many accounts of social development stop at the state, but recent that move beyond the state is Robert Wright, Nonzero: The Logic of Human Destiny (New York: Vintage 2000), and Ian Morris, Why the West Rules – For Now: The Patterns of History and What They Reveal About the Future (Farrar Straus and Giroux 2010) . 176 A terrific exploration of this is Neil Brenner, Globalisation as Reterritorialisatoin: The Re-scaling of Urban Governance in the European Union, 36 Urban Studies 431 (1999) . 177 Id . 438–441 . 178 See Philip Bobbitt, Terror and Consent: The Wars for the Twenty-First Century (Anchor Books 2009) 86–93 . 179 See Gordon MacLeod, New Regionalism Reconsidered: Globalization and the Remaking of Political Economic Space, 25 International Journal of Urban and Regional Research 804 (2001) .

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43

At the same time that state governments are becoming more deeply entwined with private economic actors, some are relinquishing core legal activities . Private security forces handle policing at universities, malls, sporting and entertainment arenas, business facilities, and gated communities . Privately run penitentiaries house prisoners sent by the state legal system . A growing proportion of commercial and personal legal disputes are heard through private arbitration alternatives to the legal system . This shift to the private reverses aspects of the consolidation of the law-state described in the last section, blurring the line between public and private legal functions and offices . At the supra-state level, new layers of law and legal institutions have been created addressing “security, the conditions on development and financial assistance to developing countries, environmental protection, banking and financial regulation, law enforcement, telecommunications, trade in product and services, intellectual property, labor standards, and cross-border movements of populations, including refugees .”180 There are a variety of conventions on human rights and treatment of women and minority populations . Nearly 50 active regional and international courts and tribunals hear cases .181 A body of transnational business law facilitates commercial transactions between private parties across different nations . Most of this law is not enacted by official legal authorities and has no supreme authority – it is created through the actions of parties engaging in commercial intercourse . They use standardized contractual terms taken from model provisions and business usages, and disputes are handled by private arbitration rather than national or international courts .182 International law and transnational law have changed a great deal since H . L . A . Hart observed mid-century that it resembles primitive law, both of them lacking the structure of legal systems . Although there are now many more legal institutions, Hart remains correct in that it is far short of fully systematized secondary rules .183 International tribunals lack coercive enforcement ability . (The WTO’s grant of authorized reprisals by nations wronged by unfair trade practices is analogous to pre-state societies where elders approved retaliation by an injured party .) Compliance with rules and the judgments of tribunals frequently relies on voluntary acquiescence . There is much talk of the fragmentation and pluralism of international law because it is not rationalized or unified . A scholar characterized transnational commercial law as “mainly stand-alone ‘soft law,’ independent of any international framework of binding legal rules and sometimes lacking the degree of precision indispensable to a legally enforceable rule .”184 Human rights norms are violated in many lands . 180 Benedict Kingsbury, Nico Krisch, and Richard B . Stewart, The Emergence of Global Administrative Law, 68 Law and Contemporary Problems 15, 16 (2005) . 181 See Cesare P . R . Romano, A Taxonomy of International Rule of Law Institutions, 2 Journal of International Dispute Settlements 241 (2011) . 182 See Ross Cranston, Theorizing Transnational Commercial Law, 42 Texas International Law Journal 597 (2007); Roy Goode, Rule, Practice, and Pragmatism in Transnational Commercial Law, 54 International and Comparative Law Quarterly 539 (2005) . 183 For an argument that international law institutions fall along a continuum of legalization, see Kenneth W . Abott, Robert O . Keohane, Andrew Moravcsik, Anne-Marie Slaughter, and Duncan Snidal, The Concept of Legalization, 54 International Organization 401 (2000) . 184 Mario Giovanoli, A New Architecture for the Global Financial Market: Legal Aspects of International Financial Standard Setting, in: International Monetary Law, edited by Mario Giovanoli (2000) 40, quoted in: Cranston, Theorizing Transnational Commercial Law supra 598 .

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From a genealogical standpoint none of this disqualifies these as important manifestations of law . International and transnational law are continuous with and have grown out of pre-existing bodies of law, including many of the same types of legal provisions and mechanisms, and various ongoing ties to state law . As international lawyers insist, “around the world today the vast majority of governments abide by the dictates of international law an overwhelming majority of the time .”185 International law and transnational legal regimes undeniably exert legal consequences through the activities of governments, corporate actors, non-governmental organizations, lawyers, activists, and people who invoke and resort to international law .186 And like law in chiefdoms, states, and empires, law at the transnational level, while ordering and providing a background framework for intercourse also reflects and enforces power . Again we see the dual sides of law . The most powerful countries shape and support international law they believe serves their interest and defy what does not: to wit, the US water-boarding of prisoners and refusal to join the International Criminal Court . The five permanent seats in the UN Security Council (China, United States, Russia, France, and United Kingdom) legislate and have veto power over the application of sanctions for legal violations .187 The free trade ethos of the World Trade Organization – excluding labor and environmental protection provisions – is an ideological choice pushed by economically powerful nations; meanwhile, the United States and European states provide substantial subsidies to their farmers, distorting the global agricultural market, rebuffing requests by developing countries to desist .188 International and transnational law are the latest forms of law to emerge in history, developing in interaction with social, political, and economic actors and activities between states and transnationally . whaT is law? Law is a social construction that has changed in form and function in the course of human history . Early on when humans lived in hunting and gathering bands, law at its most rudimentary established protections and restrictions relating to property and persons – the basics necessary for physically vulnerable comfort-and-pleasure seeking social-sexual beings with aggressive-and-affectionate tendencies to live together, procure adequate food and shelter, survive and reproduce . When communities settled and markedly increased in size, forming complex chiefdoms and early states, institutions coalesced as an aspect of social complexity, adding structure and organized force to law, creating legal systems . This was a kind of phase transformation after which law acquired a different form and set of capabilities, most importantly standing coordinated coercive power . Legal systems continued the basic func185 Louis Henken, How Nations Behave (Columbia University Press 1979) 47 . 186 See Karen J . Alter, The New Terrain of International Law (Princeton University Press 2014) . 187 Stefan Telman, The Security Council as World Legislature, 99 American Journal of International Law 175 (2005) . 188 See Sungjoon Cho, The Demise of Development in the Doha Round Negotiations, 45 Texas International Law Journal 573 (2010) .

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tions of law in bands, while also structuring and enforcing social, economic, and political hierarchy, and adding enhancement of the power of the legal system itself . Early states included law within the polity as a complex of institutions that could make legal determinations and direct force, clothed in religious and political ideology, tradition, and community norms . States that became empires utilized law as a coercive mechanism to maintain imperial domination and advance imperial economic interests . After the consolidated law-state system underwent further institutionalization, entrenchment, and rationalization, a second phase transformation occurred, whereby law, no longer mainly limited to social ordering functions, was created at will and became a multi-functional instrument backed by organized coercion to advance the ends of those who wield it . The latest stage involves the institutionalization of law between states and law across states, matching growing networks of political and economic activities that cross state boundaries . Law today is multifarious for reasons that go unrecognized by most legal theorists . The foregoing narrative discusses different forms of law that have existed in the course of human history: hunter gatherers, chiefdoms, early states, empires, states seeking legal uniformity, and international and transnational law (particularly tied to global capitalism) . When laid out in chronological order, it looks like a historical trajectory, with later stages replacing earlier . But that is misleading . Versions, variations, and legacies of all of these forms of law can be found in innumerable contexts around the world today, interacting with other forms of law also present in the same social space (though hunter gatherer groups are disappearing) . That is why these different forms must be recognized if law is to be truly understood: they are real and continue to have an impact . Like all social phenomena, law is highly variable and is still in the making . The quest of legal positivists to identify essential, necessary, universally applicable timeless truths about law remove it from history and reduce it to a narrow set of unvarying features . What results is inconsistent with law in many past and present social settings and discards much of what law is and does . To understand what law is, it cannot be divorced from surrounding social, cultural, political, technological, material, and economic forces . A social theory of law keeps it tethered to this reality .

CommenTaries

iTaru ShimaZu* (Tokyo/JPn) from

The

viewPoinT

a CommenT

on

of

PrivaTe law

Professor Tamanaha’s PaPer

1. inTroduCTion I find Professor Brian Tamanaha’s paper very illuminating in that it shows how limited is the historical and social range within which the positivist concept of law applies, if it does at all . His approach is also unique in that it utilizes many empirical facts gathered from anthropology, sociology, history of law, comparative law, etc . In an essay defending a historical approach Tamanaha is quoting Savigny saying, “The historical spirit is the only protection against a species of self-delusion, which is ever and anon reviving in particular men, as well as in whole nations and ages; namely, the holding that which is peculiar to ourselves to be common to human nature in general .”1 Here Savigny’s criticism is directed against the “natural law tendency” which was then dominant, especially in Germany . And there was a reason why German lawyers could not but be either natural law theorists or historical law theorists; there was no unified nation state of Germany in Savigny’s time such as would have made valid positive laws to apply to whole nation . At this time and place in history, if one likes to insist that there is some law valid nation-wide at all one must adopt some legal theory other than positivist . Reading Tamanaha’s paper makes me realize that Savigny’s criticism is applicable not only to natural law theory but also to legal positivism . Western theorists, even those who claim to be positivists, presuppose law to be something similar to what they have been calling law; in other words, they think, as Savigny said, that what is peculiar to themselves is “common to human nature in general” . Japan has been practicing a Western type of law for over a century now . For about a millennium before this legal system was introduced, Japan had been under a domesticated Chinese “legal” system which was enacted around 700 A . D . and only nominally valid until her modernization . The fact that the Japan experienced a “legal” system different from Western helps us to appreciate Western law with all its historical contingencies . As the Japanese realized in the late nineteenth century, law in general or legalized society, in the Western sense of those terms, was categorically quite different from our previous social system . The difference was not that between medieval and modern societies but between society with and society without an essentially Western type of law, since Western medieval society, steeped as it was in Roman traditions, already had a definite legal system of its own . But when the Japanese began to adopt the Western legal system after 1868 Meiji Restoration, we could not find the word in Japanese or Chinese literature that would be equivalent to the noun “right” (in the sense of “just * 1

Professor emeritus at Chiba University, ex-president of JALP . The Third Pillar of Jurisprudence: Social Legal Theory, in: William & Mary Law Review, 56, 2015, 2240 .

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or legal claim”) and had to invent one while the word meaning “law” was quite familiar to both the Chinese and the Japanese because the ancient Chinese Ch’in dynasty (221–206 B . C .) had already successfully made use of certain articulated norms under the category of “law” in order to reinforce the autocratic power of the Emperor . The Japanese decided to borrow this Chinese term, which meant both the political institution and the school of thinkers to express the newly imported Western concept of law . This history may, to some extent, explain the difficulty for the Japanese to properly understand the concept of law that is uniquely Western, since law unconnected with the concept of right is not law in the Western sense . Hence the Japanese had to, and did, indeed, invent a new word for “right” by combining two Chinese characters neither of which has anything to do with the original character to mean “law” . Later, the Chinese themselves borrowed the Japanese invention and are still using it now, with somewhat Chinese twist, as they do with many other Japanese translations of Western concepts, for example, “democracy”, “philosophy”, and the like . Tamanaha shows us that there were and are many different types of law at different times and in different places, not all of which can be subsumed under the positivist concept of it . Although I completely agree with him on this, I would nevertheless like to point out that he, whether intentionally or otherwise, leaves one of core features of law unmentioned . For example, Marxists, especially Engels and Lenin, emphatically discussed their vision of a society to be realized after envisaged communist revolution in which law was supposed to have withered away . What is meant by “law” here is private law or a whole system that includes the governments to protect and enforce it, thereby making the function of private law possible . In Marxist theory private law putatively enables capitalists to exploit workers . Accordingly, in a classless society where there is no exploitation or oppression, there is no need for law, i . e . private law . In my opinion, Hobbes had pretty much the same view on this subject in so far as he maintained that the sovereign’s job was to make law concerning private property in order to determine what belongs to whom exclusively, which is essentially a private law . He may have been wrong to believe that such a law can exist only by virtue of sovereign power based on social contract to make it . But anyway, this conception of law was commonplace in the West in his day, even if it was adjudged peculiar in other parts of the world . Hobbes considered people living in a so-called state of nature to be capable of a social contract because Hobbes’ state of nature was not really natural but an imaginary one, whereby from standard private law system exclusivity of property was subtracted while the contract system was left intact . The contract system had been there from the beginning as a residue of the legal system of the day; otherwise it would have had to be introduced by the sovereign, making the circular argument in that if a sovereign makes a contract possible, so a contract makes a sovereign possible .

From the Viewpoint of Private Law

2. PrivaTe

51

law or ‘nomos’

In The Constitution of Liberty and later also in Law Legislation and Liberty2 Hayek regrets that in pre-World War II German-speaking territories the academic field of jurisprudence was dominated by scholars of public law, and as a result general theories of law were mostly constructed with public law as their paradigm . One striking representative of this trend was Hans Kelsen, Raz’s precursor and teacher, who was proud of his theoretical achievement in abolishing, as a logically necessary consequence, the long cherished distinction between private law and public law . But once private law was swallowed up in a single hierarchical system of law, i . e . public law, there would be no difference between private citizens and governmental officials who can make legally valid governmental decisions within their competence only because there are laws which authorize them to act as governmental agents . A private person would be a legal agent in exactly the same sense as a public agent, and the term “private agent” would therefore be an oxymoron here . Again, private law, or Common Law in the Anglo-American system, would be a part of a legal system just because it was enacted or condoned by legislature . Its case is the same as that of, say, tax law . And just as there are few disputes among lawyers about tax law being the result of a political process, so there would be few disputes as to private law . This means that ultimately parliament, or constitutional legislature, decides whether citizens are entitled to private ownership or to a free contract system at all . Such a theory makes logically possible a socialist revolution through democracy in which the entire system of private law will be abolished in order to introduce a totally planned economy . Who could imagine the rule of law surviving in such circumstances? And Engels would happily accept this theory as he does not need law as such in his future utopia, though he would support a violent rather than democratic revolution in order to bring about this utopia . As Tamanaha makes abundantly clear, such was not the medieval concept of law . Indeed, law and politics were considered opposites to each other . Good and old law was believed to be outside of, above and before government . Roman law, which had come to be utilized by learned lawyers in late medieval Europe without due political decision-making process as if out of logical necessity, consisted mainly of private law, whereby “law” and “right” are two aspects of one thing, Recht in German . In the world of private law, society is viewed as a web of rights and duties whose content keeps on changing day by day as a result of each agent’s action, and whose whole picture nobody can grasp or control . But each section of such legal web which concerns each individual is guiding her behaviors so that whole society achieves some order among behaviors of numerous people . This is a rough description of Hayek’s “spontaneous order” or cosmos . And since he says nomos, i . e . the rule of just conduct, is the rule which makes cosmos possible, we can understand private 2

Friedrich von Hayek, Law Legislation and Liberty, vol.1, Rules and Order (Chicago University Press 1973), 131 The fact that jurisprudence (especially on the European continent) has been almost entirely in the hands of public lawyers, who think of law primarily as public law, and of order entirely as organization, is chiefly responsible for the sway not only of legal positivism (which in the field of private law just does not make sense) but also of the socialist and totalitarian ideologies implicit in it .

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law, with all its judicial and political systems that enable private law systems to function, as the main part of nomos . It is interesting to note that the first settlers of American colonies brought with them Common Law from England, which became the law of the U . S . A . without any particular political or collective decision . Even when Americans fought England for their independence no one insisted that Common Law should be abolished for being a means of colonial oppression . It is well known that Thomas Paine started his Common Sense by distinguishing between government and society, declaring as he did that the former is based upon human evil and the latter human good .3 Thus it seems that for Paine Common Law is a part of society rather than a part of government . I would also like to point out that the view of a society which has Common Law independently of government approaches what Locke refers to as the state of nature . I wonder if we should understand rule of law such that here law means nomos or private law . Then we can say that the web of the concrete rights and duties of numerous individuals within a private legal system is the foundation and purpose of government . Constitutional law was introduced as an experiment, utilizing the terms of nomos, to protect the spontaneous order from governmental intervention . As a result we will get a legal system where private law prevails over public and constitutional laws . 3. harT

and

Colonial law

Tamanaha’s passage quoted below caught my attention because it made me think about: 1) nature of Hart’s theory of law; 2) Japan in the late nineteenth century as a developing country which narrowly escaped the fate of being colonized; and 3) Japan between the two World Wars as an aspiring empire trying and eventually failing to colonize neighboring parts of Asia . Legal transplantation, serving imperial interests, is prominent in the history of law around the world . Legal theorists construct theories of law assuming law is a mirror of society that maintains social order . In imperial contexts, however, law was exploitative, clashed with prevailing social norms, and was avoided by the populace . Raz’s assertion that law “provides the general framework within which social life takes place” was belied by colonial law, and its legacy continues to this day in mismatches between law and social life . According to Hart, a legal system “exists” when two conditions are met: the bulk of citizens obey primary rules and legal officials accept secondary rules . In colonial contexts, however, the native populace was largely hostile to or ignorant of the primary rules imposed by colonial legal system . Legal systems, as colonial law shows, are coercive complexes of power that do things in the name of law with no necessary or inherent connections to the society they purport to rule . Legal institutions can operate contrary to prevailing social norms and interests when legal officials pursue an agenda different from that of the surrounding social group .4 3

4

“Society is produced by our wants, and government by our wickedness; the former promotes our happiness POSITIVELY by uniting our affections, the latter NEGATIVELY by restraining our vices . The one encourages intercourse, the other creates distinctions . The first a patron, the last a punisher .”, Common Sense, 1776, From the first paragraph of the chapter, OF THE ORIGIN AND DESIGN OF GOVERNMENT IN GENERAL, WITH CONCISE REMARKS ON THE ENGLISH CONSTITUTION . In the section of ‘Why this Is Law ’ of Brian Tamanaha, Insights about the Nature of Law from History, in this volume, 17–45 .

From the Viewpoint of Private Law

53

At first I thought Tamanaha’s understanding of Hart might be incorrect . When Hart wrote ‘in modern state it would be absurd to think of the mass of population, however law abiding, as having any clear realization of the rules specifying …’5, he was talking about people’s knowledge of the legislative body and not about the primary rules of obligation, which he would discuss in later chapters . But even at this stage Hart shows that he is willing to acknowledge the different behaviors towards law between experts and laymen . When we approach his full-fledged theory of law as a body of combined rules in Chapter 5 and beyond, a subtle complication arises concerning the rules which he expects laymen to learn from experts . Is it primary rules of obligation or secondary rules of recognition? In other words, how can we be sure that the primary rules that laymen are obeying in daily practice and those that are recognized as such rules by legal officials through secondary rules of recognition necessarily coincide? Eventually I came to think that Tamanaha was right after all in saying that Hart’s first condition for the existence of a legal system is the fact that “the bulk of citizens obey primary rules” . My understanding of Hart is influenced by Michael Polanyi’s theory of tacit knowledge . We can often do things easily without being able to say how we do them . It is usually much easier to follow rules than to articulate them, as may be seen when we use our native language according to complicated rules of grammar . So, even if Hart is right in claiming the existence of secondary rules, especially the rule of recognition, it does not necessarily mean that we can easily articulate it .6 As regards Common Law it is almost impossible to construct general rules for finding relevant precedents and their suitable interpretations for each case at hand . Incidentally, Ronald Dworkin criticized Hart essentially by suggesting that the rule of recognition might be much more complicated than what Hart imagined it to be . Let us suppose that an expert knows how, in practice, to recognize primary rules . But he might not be able to describe how he is doing it . Still, what he recognizes as primary rules are, by definition, valid rules of law . He teaches laymen what he has recognized, i . e . valid law . If laymen do not have the know-how to recognize those primary rules, they can at least abide by them somehow and, if necessary, ask experts what they are . Consequently, we might need a tertiary rule to authoritatively recognize the secondary rules of recognition! As was pointed out by Tamanaha, however, what is recognized as law through the rule of recognition may well be logically different or disconnected from “prevailing social norms”; which, of course, was when Japan introduced Western law in the process of her modernization . After the Meiji Restoration in 1868, almost all basic laws such as constitutional law, civil law, law of commerce, criminal law, and procedural laws were newly drafted and legislated according to Western models in the last decade of the nineteenth 5 6

The Concept of Law (Oxford University Press, 1961), 59 . I doubt whether Hart is right to contend that there “exists” such a rule of recognition at all because I do not agree with his epistemological position, which contends that in order for us to reach a common recognition there must first be a common criterion or rule . It might be the case, instead, that we first have a common belief that something such as law exists, and that this belief leads our behavior and conversation to fulfill such a belief . In this case each of us may have somewhat different “criteria” for recognition, which are then coordinated to the extent required to produce a consensus for the issue at hand .

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century . Now, as far as the legal dimension was concerned, a modern state suddenly emerged in the Far East . The short-term purpose of these legislations was rather a superficial one to have the unequal treaties with Western countries revised . Predictably there was a yawning gap between law and prevailing social norms . While elites were studying Western, i . e . positive, law in college classrooms, ordinary people’s lives remained for a long time under traditional norms . What Japan acquired was not an imposed colonial law but a law that the country herself chose to transplant . But that did not make the process of its digestion and adjustment an easy matter . We Japanese had to experience an enormous paradigm shift which may be comparable to the conversion of the Romans to Christianity . The system of praise and blame changed, and things that had been blameworthy, say, anything concerning individualism, were now praiseworthy . At the center of this huge cultural shift was law . Graduates with degrees in Law occupied the top tier of every sphere of work – politics, governmental officials, the law, business, academia, journalism, etc . In my view, such members of the elite were somewhat different from those with careers in, say, science and literature, probably because studying law was the best shortcut for the Japanese to pick up Western cultures and manners . That doubtless explains why law departments were so popular with students, and law graduates so desirable to employers . It is not so much a concrete knowledge of law but something more abstract acquired in the law-learning process that made graduates of law useful almost everywhere in society . I wonder if some general theory of law can help to throw light on such aspects of legal education . Anyway, the Japanese experience of law transplantation was a success despite all the unavoidable difficulties and conflicts this incurred . The model of law in Japan was clearly positivist in the sense that each law promulgated had little to do with the sense of justice prevailing among ordinary people . It would appear that the long experience of the Germans and the French had been reflected in the transplanted law and that, far from being a mere rationalistic construction, it was something nurtured in history . Hence, when transplanted, it did not represent the history of the people whose law it became . Perhaps all this shows the power of the positivist concept of law, which may work, say, in a revolution, in which social norms familiar to people are deliberately cast aside for something radically new .7 Though I do not have much to say about Japanese imperialism and her colonial policies, I believe that Tamanaha’s argument on these issues is very important . It will inevitably be a focal point of a value judgment process in international politics . Concerning such issues, therefore, we need all the more sober research, including comparative legal studies, to find and discuss hard facts . In the era leading up to World War II Taiwan and Korea were parts of Japan, and Manchuria was a shortlived independent country, so none of these territories were colonies in the strict sense of the term; which, of course, does not mean that they were not subject to 7

The case of the French Revolution is very interesting in that the content of the Napoleonic Code Civil, which came out in the aftermath of the Revolution was not that revolutionary, except in so far as it was the first codification of civil law in history . As regards Common Law, the case seems to be different from that of statutes . Since Common Law is firmly grounded in convention, it must be difficult to utilize that system in order deliberately to bring about revolutionary changes in society . But that could be to the advantage of Common Law over statutory systems .

From the Viewpoint of Private Law

55

discriminatory treatment . The Japanese tried hard in those areas under her influence to push the process of modernization, but it was a repetition of what she had gone through herself, based on a positivist type of law disconnected from indigenous social norms . It seems that the reaction of the native people towards the Japanese empire differed considerably in Taiwan, Korea and Manchuria . It is obvious that there is much more for legal theorists to investigate about that part of our history, especially with respect to what law in the positivist sense can or cannot do as a tool for bringing about changes in societies . a TheoreTicaL aPPendix: harT and PrivaTe Law Let us use the label “lawp” for the concept of law which is the prototype of private law, similar to Locke’s state of nature . And if we describe lawp within Hart’s theoretical framework, we will get something like the following view . It is an integral part of lawp that laymen or individuals have competence to change primary rules . The focus will be more on concrete rights and duties than on the general rules themselves . But if an individual decides something concerning things within his protected sphere, say, marriage, property, contract, etc ., things change accordingly . Lawp enables individual decisions as they are to become social and final . For people living in a society which does not have the system of lawp, this is a miracle . We have already described in some detail the rules which confer on individuals power to vary their initial positions under the primary rules . Without such private power-conferring rules society would lack some of the chief amenities which law confers upon it . For the operations which these rules make possible are the making of wills, contracts, transfers of property, and many other voluntarily created structures of rights and duties which typify life under law…8

So far so good . But Hart continues to say: The kinship of these rules with the rules of change involved in the notion of legislation is clear, and as recent theory such as Kelsen’s has shown, many of the features which puzzle us in the institutions of contract or property are clarified by thinking of the operations of making a contract or transferring property as the exercise of limited legislative powers by individuals .9

I believe what makes Hart’s theory rather vague is that he turns a blind eye to the ideological nature of legal theory . In the case of Kelsen, “limited legislative powers” are possible only when authorized by higher rules or norms . Hence people can make contracts only when civil law authorizes them to do so, and the contracts are valid only when the legislative body authorized by constitutional law issues such civil law to authorize the contract makers . And if we follow this line backwards, we will find that if the legislative body decides to cancel such an authorization, then people are not in the position to make contracts, confer properties, and so on . This is what Kelsen, a socialist, meant by his “pure theory of law”, arguing as he did against Engels, Lenin and other legal theorists in the early days after the October Revolution by stating that law will not “wither away” in socialism or communism . What withers away in socialism will be lawp, but what Kelsen calls law – which we will call lawk, as it is somewhat different from lawp – will survive . Since it is noth8 9

Hart, The Concept of Law, 94 . loc . cit .

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ing but a hierarchical system of norms connected mutually as authorizing and authorized norms, lawk can go along with any autocracy, totalitarianism or despotism like Nazism, Stalinism or Ch’in dynasty . Hence it is totally none sense to talk about the rule of lawk which has nothing to do with individual liberty . The Western understanding of law has been that of lawp for at least two millennia, though it was not until the nineteenth century when lawyers in France, Prussia and other German states could “codify” it . On the other hand, in the English-speaking world what “authorizes” individual moves in private law is still only to be counted among numerous cases of Common Law . We are not always aware of those rules while utilizing them as we make our moves within the game governed by such rules .

ryuichi nakayama* (oSaka/JPn) on legal insTrumenTalism afTer fukushima a CommenT

on

Professor Tamanaha’s leCTure

1. inTroduCTion Professor Tamanaha’s IVR Kobe Memorial Lecture, “Insights about the Nature of Law from History,”1 is a broad-ranging and intriguing analysis from historical, anthropological, and comparative points of views . It is fair to say that the picture of legal history that Tamanaha gives us could widen the scope of contemporary debates on the nature of law, which seems to be shrinking and fragmented, owing to an excessive obsession with analytical rigor . What makes Tamanaha’s argument particularly interesting for me is his beginning as a theorist . I have always been strongly attracted to non-conventional theories that prompt us to take different views of “legal” phenomena . Critical legal theories in the U . S . and Britain2, and the psychoanalysis of Western legal systems by French Romanist Pierre Legendre3 are some such examples . It is no coincidence that all these theoretical ventures originated in their own experiences as practitioners to ‘transplant’ the Western law, the former in Latin America and the latter in Francophone Africa, which ended in failures . Such failures, however, turned out to be fruitful in so far as the bitter experiences urged these theorists to reconsider the grounds of Western law that had been taken for granted, and consequently to relativize them . Tamanaha also belongs to this type of theorists in that his own experience of the unsuccessful attempt to transplant Western law in Micronesia4 eventually led to his unique contributions to jurisprudence and legal theory . Japan has made use of the Western legal system since the middle of the nineteenth century, a system whose tranplantation many would argue to have been quite successful . But is that really the case? My observation, on the contrary, is that traditional instrumentalism still prevails throughout Japan . Moreover, this widely shared, inveterate attitude towards law has become even more apparent since the catastrophe at the Fukushima nuclear power plant in March 2011 . Let me leave this topic aside for the moment, however, and consider the insights that Tamanaha has achieved through a general reconstruction of the history of law . * 1 2 3

4

Professor of Graduate School of Law and Politics, Osaka University . Brian Z . Tamanaha, Insights about the Nature of Law from History, (2014) 2014 IVR Kobe Memorial Lecture, Draft . Neil Duxbury, Patterns of American Jurisprudence (Oxford University Press 1995) 435–440 . David M Trubeck and Marc Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States, Wisconsin Law Review 1062 (1974) . Pierre Legendre, Sur la Question dogmatique en Occident. Aspects théoretiques (Librairie Arthème Fayard, 1999); Pierre Legendre et Philippe Petit, Vues éparses: Entretiens radiophoniques avec Philippe Petit (Mille et une Nuit, 2009); Peter Goodrich (ed .), Law and the Unconscious: A Legendre Reader (Macmillan, 1977) . Brian Z . Tamanaha, A General Jurisprudence of Law and Society (Oxford University Press, 2001) Preface xi–xiii .

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2. analyTiCal aPProaCh

and

soCio-hisToriCal aPProaCh

Tamanaha’s paper starts with a criticism of the answers to the question, “What is law?” as given by analytical positivists . The problem is that though they claim to give a description of legal systems in general, it amounts to nothing more than an abstraction of snapshots of the law of a particular time and place as seen through the eyes of a limited number of people .5 This is rather a scathing criticism, but I have to agree with his argument that rigorous analytical positivism is becoming more and more disconnected from the socio-historical realities of law and losing its interest in, and commitment to, the practical challenges we face today . I approve of Tamanaha’s socio-historical approach rather than the positivist’s analytical approach, which has become trapped in its over-generalized abstractions . At the same time, I would like to point out here that H . L . A . Hart’s The Concept of Law has some unfulfilled potential .6 As is well known, his famous distinction between “internal point of view” and “external point of view” was inspired by Wittgenstein’s later philosophy of language, and I tend to think that this distinction was an appropriate translation of Wittgenstein’s “criteria” and “symptoms” introduced in The Blue Book .7 According to Wittgenstein’s later philosophy, the meanings and functions of concepts must be understood within the context of “language games”, which in turn reflect the diversity of “forms of life .” If Hart’s theoretical endeavor had gone in this direction, i . e . what Peter Winch named “descriptive sociology” in his seminal work,8 the overall picture of analytical jurisprudence might have been slightly different from what it is now .9 Thus, instead of antagonism or a mere divi5

6 7 8 9

Tamanaha’s criticism against the analytical jurisprudence reminds me of the “positivisme critique” advocated by a French legal philosopher François Ewald . As a disciple of Michel Foucault, who never stopped attacking such abstract and universal ideas as “Power” and the “State”, Ewald claims that one need to suspend the idea of “Law” itself and, instead, take a position of strict nominalism . “The Law doesn’t exist, or it is nothing more than a name (Le Droit n’existe pas, ou pas plus qu’un nom) .” What the word “Law” signifies is not the substance, but the diverse practices that are always and already particular . In other words, the law ought to be considered as a temporal phenomenon, and its existence in a given society as a singular event . Thus, according to Ewald, it is of no use trying to find out the universal definition of the “Law”, as long as it is an attempt to cut out only certain parts of the variety of legal practices and identify them as the “Law” . Instead, the task of the philosophy of law is to explain the reasons why certain practices at certain times and places come to be perceived as “Law” in certain ways, and to evaluate the effects these practices cause . François Ewald, Pour un positivisme critique: Michel Foucault et la philosophie du droit, Droits, No . 3, 137–142 (1986) . H . L . A . Hart, The Concept of Law (Oxford University Press, 1961) . Ludwig Wittgenstein, The Blue and Brown Books (Blackwell, 1958) . Peter Winch, The Idea of Social Science and Its Relation to Philosophy (Routledge, 1958) . Hart, The Concept of Law, 242, 249 . Nicola Lacey presents a similar view in her fascinating biography of H . L . A . Hart . According to her findings, under the influence of J . L . Austin’s language philosophy Hart “reduced linguistic usage to a body of doctrine rather than seeing it as a social practice which takes place within a context…” . Although both Wittgenstein and Austin emphasized the crucial importance of “context” in understanding the usages of language, the latter’s conception of “context” is much narrower than that of the former . In contrast with Austin’s (and Hart’s) “limited conception of context, Wittgenstein understood context to include a whole range of variables from the individual mind through to social institutions and practices – teaching, game-playing, customs, experience”, concerning which Lacey says: “ It is interesting to speculate on what difference it

On Legal Instrumentalism After Fukushima

59

sion of labour, a more productive collaboration between the analytical approach and the socio-theoretical approach might have been achieved . If converted along these lines, analytical positivism will possibly be able to connect with such insights from the history of law as presented in Tamanaha’s paper . 3. oPPressive asPeCTs

of

law

Although socio-historical approach such as the one proposed by Tamanaha is not very popular in the Japanese jurisprudential realm today, it is important to realize the critical potentials of socio-historical explorations of law that can eliminate our mistaken belief in inevitability and encourage us to re-imagine the law in alternative ways . Until the late 1970’s, most of the legal philosophers in Japan still devoted their attention to the arguments for and against legal positivism and natural law . It is true that there were also some scholars of socio-historical orientation who were variously inspired by Marxist theories, Max Weber’s diagnosis of modern law, Eugen Ehrlich’s living law (lebendes Recht) theory, American realism and its Scandinavian counterpart, and so on, but they were too limited in number and had little influence over general trends of legal philosophy in this country . More recently, the majority seems to be drawn to Anglo-American analytical arguments such as Hart’s and his disciples’ positivist theories or Ronald Dworkin’s interpretivism, and to a variety of theories of justice in the wake of John Rawls’ influential works . However, I have to confess my deep unease with these prevailing trends, because they often over-emphasize the consensus-forming functions of law without paying due attention to its sometimes oppressive and conflict-invoking aspects . As Tamanaha’s paper reveals, we cannot deny that legal systems sometimes promote and reinforce such undesirable social relations as the caste system, class distinctions, racial discrimination and gender inequalities, as well as biased interests in individuals and/or organizations . Since the advent of modernity, law has become, as Tamanaha says, an instrument “that could be used to any purpose .”10 What is missing in Japanese academe is a balanced view of the law that sheds light on all its aspects . In this respect, Tamanaha’s anthropological and socio-historical observation on legal constants – including “enforcing social and economic hierarchy, control over sexuality and offspring, rules for economic exchange and debt, protection of property, regulation of labor, protection from physical injury, and ideological enforcement (i . e . religion, political legitimation)”11 – are highly enlightening . Although, as Tamanaha points out, these constants are basically an extension of Hart’s “minimal contents of natural law”, the four constants which he has added, i . e . “legal regulation of sexual relations, legal regulation of labor of others, legal enforcement of hi-

10 11

would have made … to The Concept of Law in particular, had he taken a broader, Wittgensteinian approach . Given Wittgenstein’s emphasis on the embeddedness of language games within social practices and forms of life, it is likely that there would have been positive effects on the development of a genuinely social or institutional understanding of law” . Nicola Lacey, A Life of H. L. A. Hart: The Nightmare and the Noble Dream (Oxford University Press, 2004) 218 . Tamanaha, Insights about the Nature of Law from History 29 . Ibid . 27 .

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erarchy, and maintenance of the power of the legal system itself and the polity to which it is attached”, represent “the oppressive aspects of law .”12 The genealogical description in Tamanaha’s paper presents these constants as recurring in a variety of forms and as responding to historical changes in the formation of society . To the extent that “law is a social construction that has changed in form and function in the course of human history”13 as Tamanaha says in his concluding remarks, it is worth investigating the situation of law in Japan from this perspective, as it may help us to find ways in which we can change the thinking, behavioural patterns and inclinations of legislators, administrators and judges . In the hope of encouraging such changes, I would now like to address the issues concerning law and governance that have come out of our experiences of disaster . 4. fukushima

and

easT asian insTrumenTalism

The meltdown of the Fukushima nuclear power plant in March 2011 has exposed the critical necessity not only of ex-ante measures against a nuclear catastrophe but also of ex-post policies concerning the reciprocal help and distribution of responsibilities among citizens . After discussing some issues before and after the materialization of risks, I will try to explain how the Japanese government’s failure to cope with the aftermath of the disaster may have to do with the East Asian form of “legal instrumentalism .” Concerning the ex-ante measures, in order to estimate the feasibility and effectiveness of the Japanese policy of compensation for nuclear accidents, we must first consider the theoretical ground behind the transition from fault-based tort law to the no-fault system . Tort law presupposes a “reasonable man” who has both the intellectual capacity to understand the causal links between various things and the free will to take action to prevent foreseeable damage, whereas the no-fault system of compensation is based on the notion of “risk” calculated to arise from the probability of accidents and the potential scale of loss . However, with the advent of the age of what Ulrich Beck calls “Risk Society”14 where “incalculable risks” such as GM foods, pandemics and radical climate changes, or pure “uncertainty” in the sense used by Frank Knight, spread widely and threaten the safety of our daily life, we cannot avoid a fundamental shift in the idea of reciprocity and the sharing of responsibilities . Thus, the newly emerging notion of the “precautionary principle” has come to be recognized as one promising countermeasure against catastrophe in the era of uncertainty . The Act on Compensation for Nuclear Damage (1961) in Japan adopts the nofault system and prescribes unlimited strict liability for nuclear operators . And yet the no-fault system obviously does not work for nuclear accidents, partly because the number of accidents is so low that it is impossible to estimate their probability on an empirical basis, and partly because we cannot foresee the extent of the dam12 13 14

Ibid . 28 . It goes without saying that this opened up the era of full-fledged “legal Instrumentalism” without limit . Brian Z . Tamanaha, Law as Means to an End: Threat to the Rule of Law (Cambridge University Press, 2006) . Ibid . 43 . Ulrich Beck, Risiko Gesellshaft: Auf dem Weg in eine andere Moderne (Edition Suhrkamp, 1986) .

On Legal Instrumentalism After Fukushima

61

age . These particular characteristics of nuclear accidents would indicate the serious need to adopt the “precautionary principle .” In reality, however, neither administrators in charge of nuclear regulations nor nuclear operators themselves have complied with their legal obligations, let alone made much effort to devise measures according to the precautionary principle . It seems to me that the enormity of the catastrophe caused by the meltdown owes much to the deep-rooted disrespect for law and legality prevalent in the political culture of our country . The ex-post measures after the explosions were also irresponsible and haphazard . The government refused to provide the public with the correct information on nuclear radiation for fear of causing the kind of panic leading to massive evacuations; even now it has not devised effective policies to protect the lives of the population . Indeed, since neither the judiciary nor public prosecutors have taken appropriate action the result is that none of the nuclear operators or their regulators has so far been charged with criminal liability . Let us consider the conditions for the measures minimally required after a catastrophe . What, one might ask, prevents the paradise of mutual cooperation and voluntary reciprocal relations in the midst of the catastrophe from degrading itself to the hell of a Hobbesian “war of all against all”? What kinds of institutional safeguards can thwart a hasty but intentional implementation of “evil laws” in the name of “emergency”? Although the issues to be explored are many, one of the essential benchmarks is the citizens who call for genuine public disclosure of official information and for serious deliberations among themselves, and I strongly believe that such resilient civic attitudes should be part of people’s mentality before severe disasters ever happen . Thorough discussions on such kinds of issues are yet to take place . At this juncture I would like to refer briefly to the close connection between the elitist culture of governance in this country – i . e . a closed circle or “conglomerate” of politicians, government officials and scientists – and the traditional politico-legal culture in East Asia . The traditional legal system based on Confucianism and the doctrines of Legalism values a spontaneous moral order among the elite through the idea of right behavior or li (礼), whereas subjugated laypeople were to be governed top-down by means of laws (法) ; it can, therefore, be seen as a peculiar form of “instrumentalism” . This long-standing legal and political culture in Japan might well have formed a certain kind of mind-set among the elite, which easily leads them to neglect serious reflections on the theoretical/philosophical foundation of positive laws . Indeed, the elite with such a mind-set have rejected not only reasonable cost-benefit assessments but also sincere, albeit critical, suggestions to implement precautionary measures against potential disasters . To make matters worse, this culture also imposes grave impediments on the efforts of those endeavoring to establish sustainable institutional mechanisms to support victims after the materialization of risks . It is vital for us, if we seriously intend to overcome the challenges we are facing today, to learn from diverse experiences and experiments and hence to make serious efforts to develop an alternative politico-legal culture . This is one of the reasons why I believe the socio-historical approach such as the one proposed by Tamanaha is more important than before .

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5. remaining quesTions In conclusion, I would like to raise some questions concerning the ideal of the “Rule of Law” as one possible remedy for the rampant expansion of instrumentalism .15 The first question is about the “transplantation” of the ideal of the Rule of Law . In the legal tradition of the West, it has been perceived as a historically common premise that the ideas of “law” and “justice” have some connection to each other . If the origins of Western Law are to be found both in the seminal definition of the concept of “justice” advanced by Aristotle and as manifest in the ancient Roman law, it is easy to notice the linguistic correlation between to dikaion (law) and dikaiosune (justice) in Greek, and that between ius (law) and iustitia (justice) in Latin . These etymological connections have important implications in the concept of these words . Although it is not easy to detect such a connection in English words, there are other modern Western languages that have inherited this correlation . A case in point is German with its words Recht (law) and Gerechtigkeit (justice) . This sort of etymological/conceptual tie would appear to underpin the ideal of the Rule of Law, in the sense that this ideal necessarily includes the formal notion of justice or fairness . However, as was noted earlier, in Chinese ideograms there is no connection between “law” (法) and “justice” (正義＝公平); the word “law” (法) represents nothing more than a pure instrument for governing the people . Set in such a linguistic/ conceptual background, the ideal of the Rule of Law, imported from the Western legal system, has always been in danger of collapse . Without having the connotation of “justice” or “fairness” within the word, the ideal of the Rule of Law (法) can easily degenerate into “the ruler’s rule of people by means of law .” Despite the fact that the pivotal importance of the ideal of the Rule of Law has been advocated for quite a long time in modern Japan, the ideal has never really taken root in the national soil . Given such circumstances, can one really expect this ideal to be an antidote for the rampant instrumentalism of today? The second question is more general . If “law is highly variable and is still in the making”16 as a social construction, and if it is an instrument “that could be used to any purpose,” then law has few safeguard within it to prevent it from serving to biased interests, as Tamanaha made clear in the latter part of his paper . For while the Rule of Law in the formal sense or legality could be a promising candidate, so to speak, can it do what it needs to do all by itself? When it is backed by the ideal of formal justice such as treating equals equally and unequals unequally, the judgment of equality needs a common measure of value – i . e . the common good . However, we cannot find such a thing any more, because the dismantling of the established common good and multiplication of its fragments was the starting point of modernity . Is there no way other than being involved in the politico-philosophical debates on substantive justice after all? If one is reluctant to be so involved, can one then find something else to do within the realm of legal theory? I have not found answers to these questions and would be delighted to receive some suggestions . 15 16

Brian Z . Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2004) . Tamanaha, Insights about the Nature of Law from History, in this volume, 45 .

kiyoShi haSegawa* (Tokyo/JPn) brian Tamanaha’s ConCePTion of law h. l. a. harT’s Theory of law1

and

his CriTiques

of

1. inTroduCTion Brian Tamanaha is well known not only for his socio-legal theory of law but also for his thoroughgoing critiques of H . L . A . Hart’s theory of law2 – critiques which seem to have grown out of his experience as Assistant Attorney General of Yap in Micronesia,3 as well as being based on his exhaustive knowledge of jurisprudence, anthropology, sociology, philosophy, and legal history . In this essay, I will examine his unique concept of law and some of his critiques of Hart’s theory . 2. Tamanaha’s ConCePT

of

law

Tamanaha’s well-known definition of law is simple: “Law is whatever people identify and treat through their social practices as ‘law’ .”4 This definition highlights his attention to society, people in social arenas, and their social practices . Along with his frequent criticism of state-centered legal theories and abstract conceptions of law, his recent works (including his Kobe Lecture) emphasize the importance of historical perspective and diversity of law and society . Such an orientation reminds us of Eugen Ehrlich’s theory of law .5 Born in Czernowitz, Bukowina in Austria-Hungary and having studied Roman Law at the University of Vienna, Ehrlich went against the state-centered theories of law and paid more attention both to local social practices (called “living law”) in a multi-ethnic society and to the history of law in the West . Ehrlich, like Tamanaha, tried to relativize the modern state-centered thought of law in Western countries . As is often the case with legal pluralists, however, Ehrlich failed to distinguish legal norms from social norms (though he emphasized “the feeling of revolt that follows a violation of law”) .6 Tamanaha’s definition of law quoted above will, as I will show, also entail the same problem of not distinguishing legal and other social norms, unless he clarifies who people are and what social is, although he may have * 1 2 3 4 5 6

Professor of Graduate School of Social Sciences, Tokyo Metropolitan University . I am grateful to Kôsuke Nasu, Ryûichi Nakayama, Shin’ichiro Hama and other researchers for helpful comments on my draft for 2014 Kobe Memorial Lecture . H . L . A . Hart, The Concept of Law, Third Edition, 2014[1961] . Brian Z . Tamanaha, Realistic Socio-legal Theory: Pragmatism and a Social Theory of Law, (Oxford University Press 1997); Understanding Law in Micronesia: An Interpretive Approach to Transplanted Law (E . J . Brill 1998) . Tamanaha, A General Jurisprudence of Law and Society (Oxford University Press 2001) 166 . E . Ehrlich, Fundamental Principles of the Sociology of Law (Translated by Walter L . Moll), (Harvard University Press 2008[1936]) . Ehrlich, 2008, 165 .

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deliberately chosen to leave it open in order to encompass a wide variety of people and social arenas . 3. harT’s ConCePT

of

law

and

Tamanaha’s CriTiques

of

iT

In his The Concept of Law, Hart defines law as the union of primary and secondary rules . Primary rules aim at “restrictions on the free use of violence, theft, and deception .”7 However, the simply structured society of primary rules has three defects: being uncertain, static, and inefficient . To remedy these defects, secondary rules are introduced: rules of recognition, change, and adjudication . As Hart claims, “[t]he introduction of the remedy for each defect might, in itself, be considered a step from the pre-legal into the legal world .”8 In addition, Hart argues that there are two minimum conditions necessary and sufficient for the existence of a legal system . First, the primary rules must be generally obeyed; and second, the secondary rules must be accepted by the officials . On the one hand, Tamanaha accepts Hart’s conventionalist stance that one relies (a) on ordinary usage of language to identify the law; and (b) on the social practices of legal officials to identify the rules of recognition .9 On the other hand, Tamanaha criticizes Hart’s state-centered conception of law by stating that “[a] less misleading title to his classic text The Concept of Law would have been ‘The Concept of State Law’, or ‘The Elements of State Law’,”10 though by law is usually meant state law .11 Tamanaha also criticizes Hart’s essentialist and functionalist approaches to law . The former suggests that “law possesses certain necessary characteristics” such as primary and secondary rules .12 The latter suggests that law has the function of, say, social control or maintaining normative order; therefore, when primary rules are not generally obeyed by the populace, there are no functioning laws (and non-functioning law does not qualify as a legal system) .13 4. harT

and

Tribal soCieTy

According to Tamanaha, “the absence of secondary rules is a defect only if there is substantial uncertainty about the rules, if society is rapidly changing, and if existing enforcement mechanisms are not functioning … Hart’s concept of law privileges forms of law necessary to fast changing heterogeneous society …, discounting non-institutionalized legal forms suited to slow-changing, close knit communities,” while the typical bands and chiefdoms “were small homogeneous societies with 7 8 9 10 11 12 13

Hart, 2014, 91 . Hart, 2014, 94 . Hart’s conception resembles P . Bohannan’s concept of “double institutionalization .” See Bohannan, The Differing Realms of the Law, 67 American Anthropologist, 1965, 33 . Tamanaha, 2001, 135–136 . Tamanaha, 2001, 151 . Tamanaha, 2001, 136 . Tamanaha, 2001, 149 . Tamanaha, 2001, 136–137 .

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shared understandings of their laws and what ought to be done in situations of disruption, with the response usually oriented to restoring relations within the community .”14 However, Hart recognizes that primitive societies keep their order without legal codes, judges, or court systems; concerning which he mentions Malinowski, Diamond, Llewellyn and Hoebel, and Evans-Pritchard in an endnote of his book .15 According to Evans-Pritchard, for example, the Nuer has the society of “ordered anarchy”; as he writes: “The Nuer has keen sense of personal dignity and rights . The notion of right, cuong, is strong .”16 In addition, as Jeremy Waldron puts it, Hart’s concept of law provides the frame of reference for analyzing various tribal societies and placing them in the intermediate category . [Hart] acknowledges that there must be intermediate cases; indeed in an endnote that references Diamond, Malinowski, and others, he suggests that there may not be any pure cases of social systems without secondary rules . Certainly, he appears willing to leave many such societies as intermediate cases where it is simply unclear whether the term ‘law’ applies . Hart is by no means dogmatic in his distinction between law and not-law .17

5. harT

and The

sTaTe law

As we have seen above, Tamanaha argues that Hart’s theory of law is state-centered . First of all, we should consider the fact that Hart criticizes Austin’s sovereign command theory of law by focusing on the conventional behaviors of the people . On this point, Hart’s theory of law is not inconsistent with legal pluralism . As Waldron points out, “Law does not have to be state law on Hart’s account, though he does make the claim that paradigm cases of law will involve some sort of organised coercion .”18 Second, the “officials” in Hart’s theory are not necessarily state officials . Roger Cotterrell argues (which Waldron cites) that, “[n]othing in Hart’s books seems to indicate that ‘officials’ for this purpose must be state officials: certainly the judges of an international tribunal and perhaps the priests of a religious group [or] the elders of a cultural or ethnic group… could qualify .”19 As Tamanaha points out, Hart does not make an explicit reference determining who qualifies as legal officials .20 However, rather than being a deficiency, it suggests the wide applicability of Hart’s theory .

14 15 16 17 18 19 20

Tamanaha, Insights about the Nature of Law from History, 2014 Kobe Memorial Lecture, in this volume, 26 . Hart, 2014, 291–292 . E . E . Evans-Pritchard, The Nuer: A Description of the Modes of Livelihood and Political Institutions of a Nilotic People (Oxford University Press 1940) 117 . J . Waldron, Legal Pluralism and the Contrast Between Hart’s Jurisprudence and Fuller’s, in: The Hart-Fuller Debate in the Twenty-First Century, edited by P . Cane (Hart Publishing 2010) 143 . Waldron, 2010, 139 . R . Cotterrell, Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (Routledge 2006) 37 . Tamanaha, 2001, 139 .

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Third, although Hart considers state law as the paradigm of law, he seems to use it as a reference point for analyzing various legal systems, as we have seen above . Hubert Rottleuthner argues that, “even ethnologists or adherents of ‘legal pluralism’ inevitably have to rely on the state-centered characteristics [of law] .”21 Tamanaha argues that, “[t]o say that primitive societies lack law is equivalent to the assertion that primitive societies lack the basic features of state legal systems . But this begs crucial questions: Does law have only one form? Can law vary by place and change over time? Is this the most illuminating way to understand what law is?”22 On this point, Hart does not say that law cannot vary or change . We can still utilize Hart’s model of law as a reference point and analyze a variety of laws . 6. The disTanCe

beTween

soCial ConTrol

and

CoerCion

According to Tamanaha, “[t]o state that law is a mechanism of social control, that it controls and guides conduct, is to assert that law has these functions” .23 Certainly, Hart refers to the concept of “social control” several times in his book .24 However, when Hart regards the social control or guidance of conduct as the function of law, he often uses the concept of control or guidance in contrast to that of coercion . First of all, we note that Hart is opposed to Austin’s command theory of law, saying: “The principal functions of the law as a means of social control are not to be seen in private litigation or prosecutions… It is to be seen in the diverse ways in which the law is used to control, to guide, and to plan life out of court .”25 In this context, “to control” and “to guide” mean practically the same as “to plan .” Law is not only an oppressive force but also a useful tool for people who actively plan their lives out of court . Second, we note that Hart is also opposed to Dworkin’s interpretive theory in the postscript to the second edition of The Concept of Law . While Dworkin argues that the point or purpose of law is to justify coercion, Hart refutes such a claim by referring to the “guides to human conduct” . Here the concept of “guides of conduct” is a long way away from the concept of “coercion .” [W]hereas Dworkin’s interpretive legal theory in all its forms rests on the presupposition that the point or purpose of law and legal practice is to justify coercion, it certainly is not and never has been my view that law has this as its point or purpose… I think it quite vain to seek any more specific purpose which law as such serves beyond providing guides to human conduct and standards of criticism of such conduct .26

Third, when Hart discusses social control in modernized (not primitive) societies, he often makes mention of the alienating process of the legal system, pointing out that, in the process of modernization, people lose touch with complicated legal provisions, and that the legal system becomes alienated from their daily lives . In 21 22 23 24 25 26

H . Rottleuthner, Einführung in die Rechtssoziologie, 1987 . (This sentence cited is included only in the Japanese edition, Gendai Doitsu Hôshakaigaku Nyûmon, Fuji Shôbo, 1995, 25 .) Tamanaha, in this volume, 18–19 . Tamanaha, 2001, 136 . Hart, 2014, 39, 40, 91–92, 124, 155, 169–170, 193, 202, 207, 210, 213, and 234 . Hart, 2014, 40 . Hart, 2014, 248–249 .

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67

such situations, social control inevitably becomes indirect, and individual behaviors become coincident with legal provisions only consequentially . Here surely the reality of the situation is that a great proportion of ordinary citizens – perhaps a majority – have no general conception of the legal structure or of its criteria of validity .27 In an extreme case the internal point of view with its characteristic normative use of legal language (‘This is a valid rule’) might be confined to the official world . In this more complex system, only officials might accept and use the system’s criteria of legal validity . The society in which this was so might be deplorably sheeplike; and the sheep might end in the slaughter-house . But there is little reason for thinking that it could not exist or for denying it the title of legal system .28

When Weber depicts such a process, he regards it as rationalization of rules, distinguishing “consensus (Einverständnis)” from “understanding (Verständnis) .” The latter means knowing or being aware of rational principles, whereas the former means “plain submission to the customary because it is customary,” regardless of its being “at first wholly incomprehensible to us in its foundation and even its purposes” . Hart seems to have been influenced by these conceptions of Weber, even though he denies such influences .29 While the creation of a new ‘law’ or a new paragraph of associational statutes is being discussed, at least those interests that are especially strongly affected are likely to grasp its actually intended ‘meaning .’ Once a rule is familiar practice, the meaning originally more or less uniformly intended by the founders can be so completely forgotten or concealed through change in meaning that only a minute fraction of judges and attorneys actually grasp the ‘purpose’ for which complicated legal norms have been agreed upon or imposed . The public, however, is familiar with the facts of the enactment and of the empirical validity of the legal norms and therefore of the resulting ‘probabilities’ just so far as is necessary to avoid the most drastic consequences . With increasing complexity of the rules and progressive differentiation of the social life, this situation becomes more and more universal . Precisely those who plan to act contrary to the enacted rules, who thus intend to ‘violate’ or ‘circumvent’ them, doubtless best understand their empirically valid meaning, i . e ., the probable expectations that usually follow from the fact that they were once created and now are usually interpreted in a certain way and are guaranteed by the coercive apparatus… The progress of social differentiation and rationalization therefore usually – though not absolutely always – means a wholesale widening separation of those practically affected by rational techniques and rules from the rational foundation of those rules .30

Niklas Luhmann well understands people’s ignorance of legal provisions, saying that it is irrational to expect everyone to gain so much legal knowledge and keep it up to date . [L]aw was definitive in its beginning even in the era of pre-modern cultures, but in the modern age so complex that the individual can no longer know it . Even legal specialisation has to concentrate on narrow areas which are drawn apart either in the sense of normal knowledge for everyday use or in the direction of subject specialisation: the judge consults his ‘Palandt,’ the patent lawyer his accountant . The incapacity for full legal knowledge is, of course, an old phenomenon, but moves from being the exception to the rule even in the solution of legal questions 27 28 29 30

Hart, 2014, 114 . Hart, 2014, 117 . N . Lacey, A Life of H. L. A. Hart: The Nightmare and the Noble Dream (Oxford University Press 2004) 230–231 . M . Weber, Some Categories of Interpretive Sociology, The Sociological Quarterly, vol . 22, no . 2 (Spring, 1981) (trans . by E . E . Graber), 178 .

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Kiyoshi Hasegawa which continuously involve everyday living . Apart from that, it is not even rational now for the individual both to gain legal knowledge to store for the future and keep it up to date, however frequently he is confronted with certain legal cases in his occupation . The expense would not bear any relation to the returns . A lack of knowledge in legal questions is not only unavoidable, but is also advisable . One can reasonably assume that all law is written down and somehow establishable when required and one has trust to a kind of urbane experience which tells us in which situations it is exceptionally necessary to seek advice about legal possibilities before one acts .31

Tamanaha emphasizes that people are often ignorant of state law or state legal system . Yap had a legal system, with a legislature, a handful of judges and attorneys, a small police department, and a complete legal code based in its entirety on laws transplanted from the United States . But vast portions of the Code have never been applied, few lay people have any knowledge of the content of the laws or of the nature of the legal system, a large proportion of social problems are dealt with through traditional means without participation of the legal system, and indeed on most of the islands there is no legal presence at all . Their day-to-day behavior is not governed by state law, but by their own system of cultural norms . Social order is maintained by sources other than the law . They do not identify with the legal system in any way .32

However, as Hart also recognizes, such a situation in which people are ignorant of legal rules is not unusual even in modern societies .33 Moreover, Hart’s primary rules of obligations are concerned with “restrictions on the free use of violence, theft, and deception in general” . Accordingly, if Tamanaha’s “traditional means” and “their own system of cultural norms” in the above quotation are concerned with such restrictions, Hart would have called them “primary rules in Yap”, for he did not confine primary rules to those enforced by the state . 7. obedienCe

and

iTs reasons

Hart claims that people obey primary rules for a number of different reasons; so what he means by “obedience” entails arbitrary and voluntary decisions made by the populace . The law which he obeys is something which he knows of only as ‘the law’ . He may obey it for a variety of different reasons… He need not think of his conforming behaviour as ‘right’, ‘correct’, or ‘obligatory’ .34 [T]heir allegiance to the [legal] system may be based on many different considerations: calculations of long-term interest; disinterested interest in others; an unreflecting inherited or traditional attitude; or the mere wish to do as others do .35

Here, too, Hart seems to have been deeply influenced by Weber . Weber argues that people’s behaviors correspond to the legal norm, not because they regard obedience

31 32 33 34 35

N . Luhmann, A Sociological Theory of Law, translated by E . King and M . Albrow (Routledge & Kegan Paul, 1985) 195 . Tamanaha, 1997, 136 . R . C . Ellickson, Order without Law: How Neighbors Settle Disputes (Harvard University Press 1991) 49 . Hart, 2014, 114–115 . Hart, 2014, 203 .

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as a legal obligation,36 but because they are motivated to “orientate” their behaviors toward legal norm for various reasons . “Orientation” in Weber’s discussion is quite similar to what Hart calls “obedience” . The broad mass of participants act in a way corresponding to legal norms, not out of obedience regarded as a legal obligation, but either because the environment approves of the conduct and disapproves of its opposite, or merely as a result of unreflective habituation to a regularity of life that has engraved itself as a custom… Neither is it necessary… that all those who share a belief in certain norms of behavior, actually live in accordance with that belief at all times . Such a situation, likewise, has never obtained, nor need it obtain, since…it is the “orientation” of an action toward a norm, rather than “success” of that norm that is decisive for its validity .37 The motives for obedience may rather be of many different kinds . In the majority of cases, they are predominantly utilitarian or ethical or subjectively conventional, i . e ., consisting of the fear of disapproval by the environment .38

In this context, we should not regard “obedience” to laws as attitudes bound by dictates . 8. harT

and The

Power

of

law

Tamanaha emphasizes the oppressive power of law . A dominant aspect of law throughout history is the service of political and economic power, social stratification, and inequality .39 What is most problematic about legal positivist conceptions is that their built-in functionalist take on law downplays the extent to which legal systems can be a “Gunman writ large,” an apt description of many legal regimes in history and some legal systems today .40

Hart is also much aware of such aspects of law . [T]he step from the simple form of society, where primary rules of obligation are the only means of social control, into the legal world with its centrally organized legislature, courts, officials, and sanctions brings its solid gains at a certain cost . The gains are those of adaptability to change, certainty, and efficiency, and these are immense; the cost is the risk that the centrally organized power may well be used for the oppression of numbers with whose support it can dispense, in a way that the simpler regime of primary rules could not . Because this risk has materialized and may do so again, the claim that there is some further way in which law must conform to morals beyond that which we have exhibited as the minimum content of Natural Law, needs very careful scrutiny .41

36 37 38 39 40 41

R . Stammler, as well as E . Ehrlich, emphasized that the social pressures often provided people with stronger incentives than legal orders did . See Stammler, Die theorie des anarchismus, (Nabu Press 2010 [1894]), 24; Ehrlich, 2008, 64 . Weber, Economy and the Society: An Outline of Interpretive Sociology, edited by G . Roth and C . Wittich (University of California Press 1978) 312–313 . Weber, 1978, 314 . Tamanaha, in this volume, 32 . Tamanaha, in this volume, 38 . Hart, 2014, 202 .

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9. ConClusion: researCh?

a

definiTion

of

law

or a

guideline

for

soCio-legal

When Tamanaha discusses Hart’s conventionalism, he asks what people did with the law, or how social groups defined the law, thereby developing this conventionalism into something fuller from his unique sociological perspective . Instead of dictating what law is, it [a general jurisprudence] asks how groups of people talk about law . Instead of assuming what law does, it examines what people do with law .42 The essential idea behind the social theory of law are to keep a close eye on what people – legal or non-legal actors – are actually doing relative to law, and to discover and pay attention to the ideas that inform their actions .43 [L]aw is social in nature and is best understood through an empirically focused lens .44 Law is a social construction that has changed in form and function in the course of human history .45

However, Tamanaha’s view of law as quoted above looks less like a definition than a warning call to socio-legal researchers as follows: “Keep your eyes on what people are doing!” The problem with this delineation of law is that it remains unclear who people are and what society is, even if Tamanaha believes that where there is society, there is law (ubi societas, ibi ius) . Indeed, in the course of their own research, sociologists need to consider the specific details of the people and the society in question, and, in so doing, decide who people are as well as what society is . While Tamanaha’s definition of law appears to be neutral, broad and comprehensive as a guideline, each researcher nevertheless has to interpret reality from his or her own perspective, and the resulting research may or may not turn out be neutral . Furthermore, as Emmanuel Melissaris put it, “[i]f there can be no sense of law, all the various phenomena, which are experienced and referred to as legal by the participants in the respective communities, can only be normatively and ontologically incommensurable with each other .”46

42 43 44 45 46

Tamanaha, 2001, 156 . Tamanaha, 2001, 165 . Tamanaha, The Third Pillar of Jurisprudence: Social Legal Theory, William & Mary Law Review, vol . 56, 2015, 2266 . Tamanaha, 2014, in this volume, 44 . E . Melissaris, Ubiquitous Law: Legal Theory and the Space for Legal Pluralism (Routledge 2009) 33 .

michihiro kaino* (kyoTo/JPn) brian Tamanaha’s hisToriCal sTudy of balanCed realism

and

his ConCePT

1. inTroduCTion This essay looks at Professor Brian Tamanaha’s research on the history of American legal thought by referring mainly to two of his books, in which he shows quite an original perspective on the subject of American legal realism in the first half of the 20th century, as well as on historical jurisprudence, which was influential in the United States in the second half of the 19th century . In Part 2 of this essay, I will discuss Tamanaha’s research on the history of American legal thought in Law as a Means to an End: Threat to the Rule of Law (2006), in which he describes in detail the establishment of the instrumental view of law in the 20th-century America, and points up the importance of judges having a consciously rule-bound orientation to constrain this kind of tendency .1 In Part 3, I will examine Beyond the Formalist-Realist Divide: The Role of Politics in Judging (2010) .2 As can be expected from the title, this book deals with the divide between legal formalists and legal realists, which is said to have characterized the history of early modern Americal legal thought . However, in this book Tamanaha is intent on uncovering the myth, namely, that legal formalism was dominant in America from the 1870s to the 1920s, and that legal realists who were critical of it then prevailed . Refuting this common understanding, Tamanaha argues that the history of American legal thought and legal practice is in fact characterized by a moderate balanced realism . In the afterword of Beyond the Formalist-Realist Divide, Tamanaha adds that, while the idea of the divide between legal formalists and legal realists being a myth may be something of a revelation to lay people, it was already recognized in American legal history studies .3 It can be said that Tamanaha’s research in Beyond the Formalist-Realist Divide re-evaluates American legal thought of the second half of the 19th century, especially historical jurisprudence, and represents a new trend in the study . In Part 4, I will touch on this re-evaluation of historical jurisprudence in Tamanaha’s research as well as its connection with his more recent social legal theory advanced in ‘The Third Pillar of Jurisprudence: Social Legal Theory’ (2015) .4

* 1 2 3 4

Professor of Law, Faculty of Law, Doshisha University . Brian Tamanaha, Law as a Means to an End: Threat to the Rule of Law (Cambridge University Press 2006) . Brian Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2010) . Tamanaha (note 2), 202 . Brian Tamanaha, The Third Pillar of Jurisprudence: Social Legal Theory, William & Mary Law Review, 56 (2015) 2235–2277 (referred to in the text as ‘The Third Pillar’) .

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Michihiro Kaino

2. The insTrumenTal view in ameriCa

of

law

and The

Crisis

of The

rule

of

law

In the opening of Law as a Means to an End, Tamanaha criticizes Morton Horwitz’s understanding of modern American history of legal thought in Transformation of American Law (1977), that is to say, that in contrast to the 18th-century America, where common law was perceived as a body of principles and non-instrumental conceptions of law were dominant, the common law judges of the 19th century adopted an instrumental view of law in order to profit such dominant forces in American society at the time as commerce and industries . By the mid-19th century when common law became a profitable medium for capitalists, judges began to take a formal, non-instrumental approach in that they only declared the principles of common law . According to Horwitz, this is a fraudulent form of non-instrumentalism, and its original purpose was to secure the capitalists’ profit .5 Tamanaha argues, in contrast to Horwitz, that it is not necessarily the case that legal formalists of the second half of the 19th century held instrumental conceptions of law . According to Tamanaha, common law in the 19th century was used instrumentally so that society’s interests were realized by various individuals and groups, although the idea of legal instrumentalism that law was perceived as an ‘empty vessel’ that ‘could be filled in with whatever content might be desired by law makers to serve whatever end was desired’ did not exist then .6 For instance, Thomas Cooley and others who contributed to the formation of formalist courts in the latter half of the 19th century are understood to have done so not for the promotion of capitalists’ profit but for the promotion of the collective good of American society .7 Lochner v. New York (1905) and other cases show that such courts tried to eliminate special interest legislations from society .8 According to Tamanaha, Roscoe Pound, who viewed jurisprudence as a science of social engineering, also did not regard law as an empty vessel to contain all kinds of desired purposes . However, the idea that law should reflect social good, as held by Pound and by realists in later periods, was overturned by relativists . Tamanaha argues that general skepticism about objective moral values, such as logical positivism and Marxism, determined the subsequent direction of American law .9 One historic event that solidified the conception of law as an empty vessel in the United States was President Roosevelt’s court-packing plan of 1937 to break the deadlock for his New Deal legislation . The plan was to make it possible for an additional judge to be appointed to the Supreme Court for every judge over the age of seventy . Although this plan failed, Tamanaha points out that, as a result, the formation of the Supreme Court changed, and consequently the position of a judge came to be clearly regarded as a convenient instrument for effective legal reform .10 The Warren Court from 1953 to 1969 also embodied legal instrumentalism, as Tamanaha shows by referring to the well-known case that established the right of 5 6 7 8 9 10

See Tamanaha (note 1), 24–25, 35 . Tamanaha (note 1), 35 . Tamanaha (note 1), 37–38 . Tamanaha (note 1), 49 . Tamanaha (note 1), 75 . See Tamanaha (note 1), 77–83 .

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73

privacy, despite there being no clear constitutional provision . Although the consensus on social values was coming apart, as Tamanaha claims when summing up the defining features of the Warren Court, it continued to flex ‘its power to change the law in the name of constitutional values in the mid-1960s’ .11 In his examination of the Burger Court, the famous case of Roe v. Wade (1973) is portrayed as a watershed event in the modern history of the Supreme Court, and he criticizes the case saying that it ‘reigns as the unmatched example of judicial arrogation of legislative power, of justices imposing their personal views on the populace in the name of interpreting the Constitution’ .12 In relation to the Rehnquist Court, a classic example of legal instrumentalism is seen by Tamanaha in the Chief Justice’s statement that it is unsurprising for the President to engage in court packing in line with his own policies, which he regards as the condensation of the pathology of American law . As he points out, it is probably unlikely that a judge in the first half of the 20th century or earlier would have acknowledged, let alone declared publicly, that law was an instrument to the extent that Rehnquist did .13 Tamanaha’s diagnosis is that legal instrumentalism is increasingly becoming America’s legal culture, and that American law is becoming something which cannot be called a legal system . However, in the epilogue to Law as a Means to an End, Tamanaha concludes that it is impossible to return to a 19th-century non-instrumental understanding of law .14 Moreover, when examining Ronald Dworkin’s legal theory, Tamanaha argues that today it is already out of date to present a ‘plausible’ and ‘functional’ view on non-instrumental law, for it is difficult to identify objectively the principles inherent in society that law should reflect .15 Here Tamanaha suggests a return to a consciously rule-bound orientation as a plausible and functional solution . As regards the crisis of the rule of law, that is to say, the problem of the expansion of legal instrumentalism, more detailed prescriptions are suggested in relation to his concept of balanced realism in Beyond the Formalist-Realist Divide . Here, in Law as a Means to an End, he makes a simple but distinctive argument that the crisis of the rule of law arises, not because it is impossible for judges to be consciously bound by rules, but rather from ‘the belief that it cannot be done or the choice not to do it .’16 In Part 3, I will examine Beyond the Formalist-Realist Divide, in which the author demonstrates that the tradition of balanced realism in American jurisprudence is the solution, the effectiveness of which has been proven by history . 3. balanCed realism In the afterword of Beyond the Formalist-Realist Divide, Tamanaha briefly analyzes why the stereotype of legal formalism v . legal realism, which he claims to be an illusion, continues to influence legal academic circles in the United States . According 11 12 13 14 15 16

Tamanaha (note 1), 87 . Tamanaha (note 1), 89 . Tamanaha (note 1), 95 . Tamanaha (note 1), 246 . Tamanaha (note 1), 131–132 . Tamanaha (note 1), 244 .

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to Tamanaha, the narrative of formalism was created out of political motivations by advocates of progressivism, such as Pound and Jerome Frank . As is widely known, Pound used the label mechanical jurisprudence, whereas the term legal formalism was established by later advocates, which consequently weakened the political connotations of the concept . Furthermore, Tamanaha argues that the stereotype of legal formalism v . legal realism has been maintained by American academics who have highlighted the worn-out phrases of such major jurists as Wendell Holmes and Benjamin Cardozo, while ignoring the works of many other jurists and judges of the time .17 First I would like to touch on Tamanaha’s practical aim of dismantling the stereotype of legal formalism v . legal realism . By demonstrating that many American courts today are actually based on balanced realism, Tamanaha tries to encourage legal theorists to reconsider their positions that come from rather simplistic considerations such as whether ‘judges are always bound by rules’, or whether ‘the court arrives at its decision on the basis of extra-legal elements, rather than rules’ . And, as previously mentioned, Tamanaha argues throughout his body of work that this balanced realism plays an important role in restoring the rule of law in the context of the expansion of legal instrumentalism . The attempt to dismantle the stereotype of legal formalism v . legal realism begins in Beyond the Formalist-Realist Divide, with a re-evaluation of historical jurisprudence of the second half of the 19th century, which, according to critics, established and reinforced legal formalism . Along with Cooley, who is referred to above, James Carter (who was famous for his arguments against codification), William Hammond, Christopher Tiedeman and others are considered to belong to the school of historical jurisprudence . The archetypal legal formalism as the object of legal realists’ criticism presupposes that legal decisions are deductions from legal rules and direct applications of limited legal conceptions . However, according to Tamanaha, even Cooley, who is considered to have made a significant contribution to the establishment of legal formalism, maintains that difficult problems always arise in regard to which rules should apply, and that the application of rules is not a simple problem of deduction .18 In this connection, Tamanaha also quotes a statement by Tiedeman to the effect that legal interpretation by judges can be influenced by various societal factors; in other words, by public opinion, or the scope and nature of public opinion in respect of the case at hand .19 Furthermore, Carter, a leading member of the school of historical jurisprudence, argues that new facts are continually found, society is always changing, and so there always exists an uncertainty in the law .20 In relation to the other end of the legal formalism v . legal realism stereotype, Tamanaha attempts to do away with the common misunderstanding that realism is extremely skeptical of law and the courts . He particularly notices Karl Llewellyn, who, while acknowledging the various possibilities in the open nature of the interpretation of the statute law and the manipulability of precedent, argues that actual interpretations that can be supported are limited and that judges have to choose an 17 18 19 20

Tamanaha (note 2), 200 . Tamanaha (note 2), 55 . Tamanaha (note 2), 80 . Tamanaha (note 2), 84 .

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interpretation within a set framework . Although there is a tendency for the skeptical side of realism to be emphasized in the legal formalism v . legal realism framework, according to Tamanaha, legal realists have also acknowledged the value of rules in courts .21 Tamanaha’s analysis shows that there is not such a wide difference between legal formalists and legal realists . He also argues that there is actually a remarkable overlap between the school of historical jurisprudence and that of legal realism in that they both focus on the relationship between law and society . Similar to Llewellyn, who argues that it is society that shapes legal provisions, is Carter’s view of judges as specialists who verify and declare people’s customs .22 Referring to Cardozo’s analysis, Tamanaha states that historical jurisprudence has as its aim the close examination of present law, rather than a blind reproduction of the past, by looking at the historical development of law . At the same time, Tamanaha indicates that just as realists emphasize the relationship between law and society, Holmes before them had done so too in The Common Law, while Pound’s sociological jurisprudence also contains legal thought of a similar orientation .23 In this connection, while acknowledging that rules have a certain binding force, Tamanaha argues that scholars of historical jurisprudence and realists share the position that the judges’ view on society plays a constructive role in judgments, which is what he calls balanced realism .24 According to Tamanaha, the divide between legal formalism and legal realism, which has continued in the framework concerned with American legal thought from the second half of the 19th century, is a false construct; American jurisprudence has in fact been always characterized by balanced realism to this day . The essence of this balanced realism is demonstrated in the final chapter of Beyond the Formalist-Realist Divide, which is a position considered to be based not only on the work of scholars such as Cooley and Llewellyn, who have been referred to above, but also on that of contemporaries such as Richard Posner and Antonin Scalia, as well as the stated views of numerous judges over centuries .25 Tamanaha’s view of balanced realism takes into consideration the following eleven factors: (1) subconscious bent of judges distinguished from willful judging . (2) purposes and consequences . (3) conflicts, gaps, and ambiguities in law . (4) the significance of legally uncertain cases . (5) bad rules and bad results . (6) two distinct types of hard cases . (7) open provisions . (8) the infusion of extralegal factors and considerations . (9) the limitations of human judges . (10) judicial decisions determined by the law . (11) the ongoing construction of law .26 The most noteworthy of the above factors are (1) and (10), which are presented by Tamanaha as limiting the arbitrariness of the judge and the operation of instrumental view of law (which was examined in Part 2 of this essay) . In (1), it is thought that judgments based on the cognitive framing shared by judges promote a judge’s integrity, as well as non-instrumentalist legal interpretations and fact-findings . An 21 22 23 24 25 26

Tamanaha (note 2), 95–98 . Tamanaha (note 2), 85 . Tamanaha (note 2), 87 . Tamanaha (note 2), 90 . Tamanaha (note 2), 187 . See Tamanaha (note 2), 186–196 .

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internal check as to whether the search for the correct answer is carried out without bias, and an external check, in the form of reversal by reviewing tribunals and condemnation from observers, are also mentioned .27 In (10), this kind of shared cognitive framing is also referred to as a ‘legal layer’, and the indication that ‘deeply integrated with this legal layer is a shared social layer of language and cultural views’ is noteworthy .28 As already mentioned, Tamanaha presents balanced realism as something that can also characterize modern American jurisprudence . For instance, he points out that Posner, the legal pragmatist, and Scalia, who is considered a typical legalist, have a number of things in common . First of all, whereas Posner attributes to legal formalists (or what he called legalists) the position that law develops by way of logic inherent in law, Tamanaha comes to the same conclusion as he does on the legal formalists of the second half of the 19th century by maintaining that no such jurist exists . Here, he points out that even Scalia argues that open provisions also have advantages .29 On the other hand, Posner’s emphasis on the connection of law with politics and ideology is something that relates completely to trials of an open area . Posner argues that most cases are routine and that they can be resolved by the techniques of legalists . In the end it can be said that there is substantial agreement in many cases as to what a judge should do or is doing . Tamanaha argues that it is in this agreement that the aspects of balanced realism can be identified .30 In the concluding section, ‘The Lesson of Balanced Realism’, in Beyond the Formalist-Realist Divide, Tamanaha claims that the threat to the American legal system of today has not been brought in by excessive formalism of the past, but by excessive skepticism, which is corrosive to the spirit . As is clear from Tamanaha’s argument thus far, realism, when identified as excessive skepticism, is in actual fact something unrealistic . Tamanaha’s analysis finds that it is mainly various judgments of the Supreme Court that give rise to this excessive skepticism . However, he also argues that, as the Supreme Court deals with no more than 0 .1 % of cases that federal courts have jurisdiction over, the current situation of other courts cannot be inferred on this basis . If all judges in all courts in the United States share a common orientation of balanced realism in that they apply the law, are fair, strive to figure out the strongest legal answer when the law is in doubt, and consider arbitrary judgments as inappropriate, then ‘[t]his is the most a rule-of-law system of judging can hope for’, writes Tamanaha, and ‘it is enough .’31 4. Toward soCial legal Theory Having discussed Law as a Means to an End and Beyond the Formalist-Realist Divide, I will now consider the correlation between Tamanaha’s more recent idea of social legal theory and his research into American legal thought . However, before this, I

27 28 29 30 31

Tamanaha (note 2), 188–189 . Tamanaha (note 2), 194 . Tamanaha (note 2), 181–182 . Tamanaha (note 2), 185–186 . Tamanaha (note 2), 199 .

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would like to raise three questions, which I hope are a useful means of casting light on the problems underlying the whole body of his work on American legal thought . First of all, there remains some doubt as to Tamanaha’s analysis of the change in American legal thought from non-instrumental to instrumental in the first half of the 20th century . For instance, he mentions the works of 18th-century Englishman William Blackstone, who greatly influenced America before and just after independence, as a typical example of non-instrumental legal thought .32 However, Jeremy Bentham criticizes Blackstone by arguing that his common law is no more than the convention of judges and does no more than realize the interests of a fixed class (i . e ., landholders), which I think is a highly persuasive argument . Tamanaha in fact accepts this kind of doubt, but argues that the non-instrumental claims about the law ‘conferred benefits upon others unintended by the elite, and regularly hamstrung those in power who wished to wield the law instrumentally for their own advantage .’33 Regardless of whether law takes the form of traditional custom or of natural law, it is important that it should have a restraining effect on power .34 If it is true that balanced realism is not sufficiently realized in America now, then it is equally true that the rule of law would have been better realized in 18th-century England than it has been in modern America . From the point of view of instrumentalism and non-instrumentalism, Tamanaha shows a unique understanding of the rule of law, and that especially through his awareness of the extent to which the rule of law is threatened in present-day America . The second question relates to Tamanaha’s attempt to dismantle the stereotype of legal formalism v . legal realism, which was discussed in Part 3 . It seems that the position of Dworkin, who has profoundly influenced theory on legal reasoning in America, is difficult to place within the framework of Tamanaha’s idea of balanced realism . As is well known, Dworkin’s judges decide cases without legally uncontrolled judicial discretions on the basis of existing rules and underlying legal principles . Thus, Dworkin’s right answer thesis, which is an explanatory theory as well as a normative one, seems to fit in with legal formalism . However, it would appear that Tamanaha’s aim is to demonstrate that common law has always been made to adapt to the state of the society and that ‘social interests, customs, morals, and purposes [are] integral to the common law system of judging .’35 From Tamanaha’s viewpoint, even Dworkin’s judges find principles immanent in society and adapt law to them, although it is sometimes argued that the image of society is seen exclusively through a legal prism in Dworkin’s theory .36 On the other hand, Tamanaha may follow Roger Cotterrell to criticize Dworkin for offering ‘no external or detached standpoint from which law’s relationship with community can be analysed .’37 Cotterrell argues that, for Dworkin, the relationship between law and community is ‘only taken for granted as the ongoing collective pursuit of legal interpretation .’38

32 33 34 35 36 37 38

Tamanaha (note 1), 32 . Tamanaha (note 1), 247 . Tamanaha (note 1), loc . cit . Tamanaha (note 2), 175 . Roger Cotterrell, The Politics of Jurisprudence, 2nd ed . (LexisNexis 2003) 170 . Cotterrell (note 36), 169 . Cotterrell (note 36), loc . cit .

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Third, Tamanaha’s understanding in Beyond the Formalist-Realist Divide, namely, that historical jurisprudence and legal realism as preceded by Holmes and Pound are continuous is quite different from a general understanding of the American history of legal thought, and this gives rise to another question . For instance, it is easier to think of a divide between the school of historical jurisprudence in the second half of the 19th century, a period based on freedom of contract, individualism and historicism, and Pound’s sociological jurisprudence, which was influential in the first half of the 20th century, highlighting the existence of social classes, government regulation and the guarantee of workers’ rights .39 Actually, Tamanaha accepts that substantial legal principles on both sides are poles apart . But Tamanaha also argues that this kind of difference ‘does not diminish the strong overlap of their views about judging and of the relationship between law and society .’40 As mentioned above, Tamanaha’s understanding of historical jurisprudence in Beyond the Formalist-Realist Divide is also connected to a re-evaluation of historical jurisprudence, which is a new trend in American legal history studies . For instance, David Rabban argues that scholars of the school of historical jurisprudence placed focus on the relationship between law and society and also showed how law had responded to stimuli in society, and that they were not solely concerned with the internal development of various legal principles .41 Furthermore, Rabban emphasizes that, like Henry Maine, Carter placed his view of common law as developing custom in contrast to natural law theory and legal positivism, and sought to present it as something to replace them .42 This kind of re-evaluation of historical jurisprudence, in which Tamanaha’s own research is included, also seems to influence the idea of social legal theory as developed in his recent publication, ‘The Third Pillar’ . Defining social legal theory as the social view of the nature of law, Tamanaha argues that it is ‘a third major pillar of jurisprudence’, with natural law theory and legal positivism as its rivals .43 But in contrast to Rabban, who looks for the cause of the decline of historical jurisprudence in Pound’s relentless critiques as based on sociological jurisprudence, Tamanaha notes that ‘historical jurisprudence was not vanquished by sociological jurisprudence – it morphed into it .’44 Even within a re-evaluation of historical jurisprudence, the position of finding this much continuity from historical jurisprudence to sociological jurisprudence is something unique to Tamanaha . Moreover, ‘The Third Pillar’ covers a considerable time span including Montesquieu, Savigny, Maine, Ehrlich, Holmes, Pound, Llewellyn, and so on, whereby it is argued that the traditions of sociological jurisprudence have been continued . Identifying one model of social legal theory within American legal jurisprudence, finding that historical jurisprudence and the following mainstream jurispru39 40 41 42 43 44

Alfred Brophy, When History Mattered, Texas Law Review 91 Texas Law Review 601 (2013) 611– 612 . Tamanaha (note 2), 89 . David Rabban, Law’s History: American Legal Thought and the Transatlantic Turn to History (Cambridge University Press 2013) 531 . Rabban (note 41), 364 . Tamanaha (note 4), 2237 . Brian Tamanaha, The Unrecognized Triumph of Historical Jurisprudence, 91 Texas Law Review 615 (2013) 629 .

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dence in America had such a model in common, re-positioning it in a greater tradition alongside natural law theory and legal positivism, and attempting to bring it back into modern jurisprudence – all this seems to characterize Tamanaha’s recent endeavors . But it is questionable whether historical jurisprudence should be rated so highly in our time, especially since it is practically impossible to find the objective social values which law should reflect . 5. ConClusion Tamanaha traces the history of legal thought through his own awareness of issues such as legal instrumentalism and the relationship between law and society . Furthermore, just as his own idea of returning to a consciously rule-bound orientation is considered plausible and functional, legal thought and legal theory are evaluated on the basis of their practicality . In addition, while judicial decisions are considered to be based on a cognitive framework shared by judges, which includes an understanding of society, Tamanaha suggests that, because judges’ understanding of society may not reflect the realities of their society, there may be a need for institutional changes .45 Indeed, in the context of American multipolar and diverse societies, a consciously rule-bound orientation and balanced realism seem to be based on a somewhat passive approach and, I think, there is a need to bring about a more active approach on the basis of social legal theory . However, Tamanaha’s view is original in that it encourages a reappraisal of, and interaction between, say, modern American theories of judicial adjudication, of the sociology of law, and of the history of legal thought, while pointing up the need for today’s English and American legal philosophers, who tend to separate jurisprudence from social or historical studies, to respond seriously to the challenge offered by this particular view .

45

Tamanaha (note 2), 171 .

hiroShi maTSuo* (Tokyo/JPn) The PossibiliTy of legal develoPmenT Through legal assisTanCe and The fuTure of law and develoPmenT 1. The CriTiCal ConCePTion

of

law

and

develoPmenT

In the history of Law and Development, some skeptics have time and again challenged the basic assumption that the law plays a positive and causal role in development . Since this fundamental question on the relation between law and social change still remains unanswered, one might well wonder whether it makes sense to devote a substantial amount of money and human resources to legal reform in developing countries .1 In an article published in 2011, Professor Tamanaha regards the “law and development” movement of the past five decades as “failures” . This critical appraisal is based on the idea that what he labels as “law and development” is modernization projects generated and funded by advanced capitalist countries and carried out by development organizations which aim to transplant Western laws to developing countries in order to establish capitalist, democratic, and liberal legal institutions, and therefore, that it is an intervention in a legal system from outside .2 Such projects have not achieved much success despite the lengthy and costly efforts, as shown by judicial reform projects in Latin America, economic law reform projects in East Europe, etc . Tamanaha concludes that this concept of “law and development” is misleading, because the very label suggests that law has a special ability to achieve desired development goals .3 But, this conception of “law and development” seems to correspond to the old-style legal assistance projects characterized as the simple transplantation of Western laws to developing countries . That conception is too narrow to understand the reality of recent development of legal assistance projects and law and development, which regard the relation between law and development in the more complicated structure of each society influenced by the political, economic and cultural features that have uniquely developed in that society . I agree with Professor Tamanaha’s basic analysis that a good law in one location may be a bad one elsewhere . It is due to the “connectedness of law” principle, which means that the law is interconnected to every aspect of society such as the tradition, culture, political and economic system, distribution of wealth and power, ethnic, language and religious make-up of the society, the level of education of the populace, the extent of urbanization, geo-political surroundings, etc .4 However, it is difficult for me to agree with the proposition that the “connectedness of law” prin* 1 2 3 4

Professor of Keio University Law School . Kevin E . Davis and Michael J . Trebilcock, The Relationship between Law and Development: Optimist versus Skeptics, AJCL 56 (2008), 915–938, 942–945 . Brian Z . Tamanaha, The Primacy of Society and the Failures of Law and Development, Cornell International Law Journal 44 (2011), 216, 235, 241–243 . Tamanaha (note 2), 247 . Tamanaha (note 2), 214 . See also Section 4 below .

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ciple stymies law and development5, because it is possible, in my view, to design law and development that recognize the “connectedness of law” as the methodological foundation, and there exist law and development projects which are based on the recognition of the “connectedness of law” principle .6 We cannot overlook the gradual movement of law and development that has been integrating the basic recognition of interrelatedness of law and other elements of society into its theoretical framework . It will provide us a thicker conception of law and development, in which law may be designed to influence economic growth and democracy promotion not necessarily directly and one-sidedly but mostly indirectly and in the complicated interrelation through various factors of a social structure . And also legal assistance projects are not necessarily mere transplantations of Western liberal legal systems into countries of insufficiently capitalist economies or lacking democracies . They may include international cooperation to exchange ideas about how to weave a unique textile of legal system which may fit for the social structure between different societies including between developed countries . “Law and Development” should be reconsidered in this thicker and broader context of the interactive function of law . 2. The PossibiliTy

of

legal develoPmenT

Through

legal assisTanCe

Professor Tamanaha distinguishes between “law and development” and “legal development” . The latter is to imply the development of law which is designed, organized and implemented without pressures from outside by people who understand their local situation . He mentions China, where substantial legal development can be found, for instance, in the increased number of new laws enacted, of court cases (including administrative cases), and of licensed lawyers, “none of which can be directly attributed to law and development projects .”7 In fact, China has long been in contact with foreign countries such as Germany and Japan in order to reform judicial systems and to enact new laws, including not only private laws but also industrial, environmental, administrative, and other public laws .8 The enactment of the tort law in 2009 is one of several legal cooperation projects with China I have participated in . We made comments and proposals about each and every clause of the first, second and third draft of the tort law and held close discussions with Chinese drafters for more than a year . We also made special reports from the viewpoint of comparative laws in response to the queries from the Chinese counterpart on subjects such as product liability, strict liability, joint liability, etc . on crucial occasions in drafting process . Some comments were adopted, some were not, and some were adopted in newly arranged draft provisions . This was only one part of our activities . The important point is that this cooperation between 5 6

7 8

Tamanaha (note 2), 219 . At least, there are certain law and development projects which regard the legal assistance as far from transplantation of law from one country to another but based on the joint study of law . See, for instance, Japan International Cooperation Agency (JICA), JICA’s Experience in Support for Legal and Judicial Reform in Developing Countries, 2009 . Tamanaha (note 2), 242–243 . As for the information as at April 1, 2009, see JICA (note 6), 75–76 .

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China and Japan did not end with the promulgation of laws but still continues today despite political turmoils through the intermediation of resident specialists (lawyers, judges, public prosecutors dispatched from Japan) for further improvements of both legal systems . This leads me to think that legal development in one country could be facilitated in a positive manner by legal assistance from other countries . Let us take a look at Japan . The law on the transaction of immovable property, for example, was first introduced and applied in 1871 starting from Tokyo area and extended to other areas since 1872 by combining the traditional system with the new deed system influenced by one known as the Torrens system, as practiced in British colonies such as Australia . It contributed to the transformation of the tax system from annual rice tax to land tax, which was the major financial basis of the newly established Meiji government . It was amended by the law on the registration system which was molded on the Prussian system and set up with the help of German advisors . This Registration Law was adopted together with the law on the notary in 1886 and they are combined with the substantive law provided by the Old Civil Code9 as modeled on the French system but adjusted to local needs by French advisors . It was further revised by the New Civil Code10, which was drafted by Japanese scholars who had studied law in England, France and Germany .11 It has since been improved to save the costs of immovable property transactions just as it has more recently facilitated financial transactions which have become the basis of corporate finance, especially since the price of land has steadily increased until the burst of the bubble economy in the1990s . This shows that the law has truly taken root in the country as a hybrid of Japanese, English, French, and German ideas . In Japan, foreign legal systems have been introduced from China (in the 7th and th 8 centuries), European Countries (in the 19th and 20th century), and the U . S . (from the 20th century), and, in combination with the existing system, have helped improve the stability of the government, to facilitate private activities, and to conform to international standards . One important thing to mention here is how the Meiji government embarked on the compilation of national basic codes . The Minister of Justice, Takato Oki, who attempted a comprehensive legal reform, articulated the basic policy to compile the civil code on the basis of “natural reason” in order to facilitate the communications between human beings . As the implementation of such “natural reason” he emphasized the importance to clarify the rights and duties between the persons in the civil code . For that purpose, he established the Bureau for the Investigation of Local Customary Rules in 1876 and published the Collection of Customary Rules in Civil Matters in 1878 .12 At the same time he appointed the French Professor 9 10 11 12

It passed the Imperial Diet in 1890, but it did not come into effect as a result of the Disputes over the Implementation of Civil and Commercial Code . It was modeled on the German system, but it was also based on the content of Old Civil Code . It was promulgated in 1896 (for the former 3 Parts) and in 1898 (for the latter 3 Parts) and came into effect in 1898 . Hiroshi Matsuo, Reception of law and civil law tradition, in: Law, Legal Culture and Politics in the Twenty First Century, edited by Guenther Doeker-Mach and Klaus A . Ziegert (Franz Steiner Verlag 2004) 79–82 . It was extended and revised in 1880 .

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Gustave Boissonade to draft a civil code in 1879 (or in 1880) .13 Oki’s aim was to enhance the integrity of the national legal order on the combined basis of traditional rules and newly introduced rules .14 Similar situations occur in various legal assistance projects . For instance, in order to support the government of Nepal to draft the Civil Code, the Nepali Taskforce prepared the Preliminary Draft (673 Sections in 7 Parts: PD hereafter) with the support of the UNDP . After the legal scholars of the Japanese Advisory Group (AG hereafter) closely examined it and made comments and questions on an article-by-article basis, the Taskforce discussed with the AG on the basis of those comments and questions and reviewed the PD and made the First Draft . The AG then examined newly added and revised provisions and made further comments on an article-by-article basis again . A substantial part of the discussions between the Taskforce and the AG was concentrated on how to revise the existing laws15 in conjunction with new rules, taking into consideration practical needs, comparisons with other laws, and international standards . Careful attention was paid to customary rules, especially in family law and succession law, most of which were maintained, though some were amended or abrogated in accordance with “natural reason” . The topics included the requirements for marriage, the legal protection of the disabled and the control of powers of the guardians, equittable division of family property among family members, protection of a bona fide third party to facilitate the transactions, etc . After that the Taskforce revised some provisions of the First Draft and completed the Second Draft (751 Sections in 6 Parts) . It was provided under the Regional Consultations and the National Consultations, which were held from December 2009 to March 2010 . It was revised and submitted to the Cabinet in April 2010 and was examined . The Third Draft was recognized by the Cabinet in January 2011, and the Bill was submitted to the Constitutional Assembly in February 2011 .16 Although the Constitutional Assembly was dissolved in May 2012, legal assistance continues to constitute the Explanatory Note of each Section of the Third Draft, which was completed in June 2013 . There were meetings between the Nepali counterpart and the Japanese AG to discuss the further amendments to the Third Draft until March 2014, and the latest version (743 Sections in 6 Parts)17 was submitted to the newly established Constitutional Assembly, whose members had been elected in November 2013 . I fully agree with Professor Tamanaha on the importance of local context in legal development . Wholesale legal transplantation is bound to fail, for it is not adapted to prevailing circumstances and cultures, while lacking sufficient resources 13 14

15 16 17

Boissonade came to Japan in November 1873 and gave lectures on natural law and French law at the law school in the Ministry of Justice from April 1874 until August 1879 . The natural law substantially influenced not only the theories but also practices since the early stage of the reception of Western laws . It was recognized as a source of law when the judge could not find any provision of law and customary law in civil matters (Article 3, Ordinance No . 103 in 1875) . They consist of the concerned provisions in Muluki Ain (the National Code) and separate laws, regulations and local practices . Government of Nepal, Ministry of Law and Justice, The Bill of Civil Code, Civil Procedure Code and Report, 2010 . Ministry of Law, Justice, Constituent Assembly and Parliamentarian Affairs, Civil Code (Proposed Bill), Singhadarbar, Kathmandu, 2014 .

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and local stakeholders committed to the law . However, law may be developed under the influence of foreign countries, and the development of the law under the foreign influence may not be appropriately called “legal transplants” . The term “legal transplant”18 seems to me to be more a metaphor for the various influences exerted by foreign laws which have occurred repeatedly in many parts of the world at various stages of history . It would be hard to find a country where the legal system has actually grown spontaneously and purely within that country . Certainly, it is worthwhile asking whether and why legal development may be promoted through foreign influences . Legal development is, as Professor Tamanaha puts it, the “ongoing construction of legal institutions .”19 That means the process of increasing integrity of law, which is a constitutive part of development itself .20 This integrity requires law to be structured on coherent principles such as justice, fairness and due process, from which legal rights and duties can be drawn and identified consistently .21 The new possibilities provided from outside stimulate the reason of those concerned to consider the principles, to compare them with existing rules, and to select or arrange them so as to improve the integrity of their law . I have often encountered situations where people showed a deep interest in comparable information from outside as a means of improving their own national legal system . However, legal reform has to be done step by step, even with assistance from abroad . A typical example may be found in the gradual change of the ex officio initiatives by the prosecutor and the court in civil procedure in Vietnam, Laos and Cambodia . The Civil Procedure Code in Laos, for instance, was amended in 2004 to abrogate the ex officio power to file cassation against a final decision without any request by the parties so as to conform to the amendment to the Constitution in 2003, which transferred the power of judicial administration from the Ministry of Justice to the Supreme Court and promoted the independence of the judiciary .22 Thus in those legal assistance projects, we see that law is regarded as a means of promoting legal development step by step, not as having the special ability to achieve the desired goals in one fell swoop . 3. hybridizaTion

of

law

and

legal Pluralism

Legal assistance may be regarded as only one phase in the long history of reception of law, ever since ancient Roman law spread throughout the empire . Various types of legal systems ware produced by mixing existing laws and laws received from out-

18 19 20 21 22

As for the analyses of the legal transplant, see Brian Z . Tamanaha, A General Jurisprudence of Law and Society, 2001, 107–132 . Tamanaha (note 2), 216 . Amartya Sen, What is the Role of Legal and Judicial Reform in the Development Process?, The World Bank Legal Review: Law, Equity, and Development 2 (2006), 38–39 . Ronald Dworkin, Law’s Empire (Harvard University Press 1986) Chapter 7 . Hiroshi Matsuo, Access to Justice in Indochinese Countries, in: Institutional Competition between Common Law and Civil Law, edited by Michèle and Henrik Schmiegelow (Springer 2014) 9 .3 .1 .3, 9 .3 .2 .3, 9 .3 .3 .3 .

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side . In our globalized world, sophisticated law of natural reason and scientific value naturally spread from one country to another .23 Professor Tamanaha indicates that law is imbricated within a thick complex of internally evolved normative orderings, power bases and incentives that may seem imperceptible from outside, so that external intervention into any society faces additional barriers, which internally produced initiatives do not .24 However, as I have mentioned above, existing laws are often crossed and hybridized with received laws during assisted legal reform . Of course, it is sometimes a lengthy process, especially if the political power of the government is not sufficiently centralized and does not reach all local areas . In such cases informal institutions such as local systems of dispute resolution continue to exist, even while the government tries to incorporate those local systems into the state legal system, as has been observed in Vietnam, Laos and Cambodia, where informal justice provided by the village community has been integrated into national legal system through the special law and order .25 Whereas this version of legal pluralism may be characterized as the first and older one, the second and newer version recognizes the coexistence of different legal orders operative in society, “of which state law is just one, and often not the most powerful one .”26 Professor Tamanaha claims that the tribunals which are accessible to the people and can provide forums in which to resolve dispute can be said to comport with rule of law functions, even if they do not meet what the West considers to be standard legal functions . Certainly, it is an alternative constellation of law which meets the needs of the community .27 I agree that a flexible and realistic conception of (the rule of) law can be applied to various types of societies .28 However, I am not sure whether we can always advocate legal pluralism if we remember the situation, for example, in Nepal, where different political groups have clashed for a long time without solving the serious problem of impunity, let alone improving the economic and social conditions of ordinary citizens . In this situation, the centralization of political power, combined with open, comprehensive and paramount rules, seems to be of utmost importance .29 From the viewpoint of law and development activities, the second and newer version of legal pluralism in particular seems to be a temporary situation rather than a stable and standard one . In legal development, the rule of law should also be conceived as something to be established in the dynamic process, in stages from (i) the growth of a shared willingness among people to comply with existing institutions; 23 24 25 26 27 28

29

Matsuo (note 11), 85–86 . Tamanaha (note 2), 243 . Matsuo (note 22), 9 .3 .1 .3, 9 .3 .2 .3, 9 .3 .3 .3 . Tamanaha (note 18), 115–116 . Brian Z . Tamanaha, The Rule of Law and Legal Pluralism in Development, Hague Journal on the Rule of Law 3 (2011), 15 . Professor Tamanaha, pursuant to the non-essentialist approach, conceives law as whatever people identify, recognize and treat as law through their social practices, and “what law is, is determined by the people in the social arena through their own usages, not in advance by the social scientist or theorist .” See Tamanaha (note 18), 166–167 . Joseph Raz, The Concept of a Legal System: An Introduction to the Theory of a Legal System, 2nd ed . (Clarendon Press 1980) 212 and note 9 .

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(ii) the formalization of legal rules by arranging rules and foreign elements; (iii) the construction of enforcement mechanism by a centralized authority; and (iv) the establishment of examination system of the substantial content of legal rules which should conform to the basic values of that legal system .30 4. ConneCTedness and develoPmenT

of

law

and

soCieTy

and The

fuTure

of

law

Professor Tamanaha points out that, while law and development projects are uniformly presented as being for the benefit of recipient countries and their people, they are often not by or of them .31 However, recent legal assistance projects have tended to put emphasis on ownership by the recipient countries . There actually exist law and development projects in which the domestic and foreign participants carefully discuss each and every clause of draft provisions of law by taking into consideration the existing laws, customary rules and comparative study of foreign laws and they respect the initiative of the domestic members in the process .32 There should be law and development projects which will promote effective reform for legal development by facilitating hybridization of existing rules and those introduced from outside . Legal development would both influence, and be influenced by, the economic, political and social development in a society . The interrelations between them would vary in accordance with the conditions of each society, and their causal relationships would, therefore, be hard to identify . It would be due to the connectedness of law and various elements of society, which includes the relation between law and political structure, economic system, religious beliefs, cultural attitudes, geographical features and other social conditions .33 In Professor Tamanaha’s legal theory, there seems to be room for analyzing how the “connectedness of law” principle works in relation to the critics of the “mirror thesis”34 and that of the conception of “law as a means to an end”35 . Is the concept of law in the “connectedness of law” the same as used in the critics of “mirror thesis” and that of the “law as a means to an end”? But, it seems to me that the concept of law in the critics of “mirror thesis” is presupposed for the conception of “law as a means to an end” and used in certain

30 31 32

33 34 35

Hiroshi Matsuo, Let the Rule of Law Be Flexible to Attain Good Governance, in: Rule of Law Promotion: Global Perspectives, Local Applications, edited by Per Bergling, Jenny Ederlöf and Veronica L . Taylor (Lustu Forlag 2009) 49–53 . Tamanaha (note 2), 243 . It is recognized as characteristics of the Japanese legal assistance . See Pip Nicholson and Sally Low, Local Accounts of Rule of Law Aid: Implications for Donors, Hague Journal on the Rule of Law 5 (2013), 1–43 and Pip Nicholson and Samantha Hinderling, Japanese Aid in Comparative Perspective, Hague Journal on the Rule of Law 5 (2013), 274–309 . Tamanaha (note 2), 214, 228–229, 245 . It is described as the idea “law is a reflection – a ‘mirror’ – of society”, and “positive law reflects – is a mirror of – the customary practices and moral norms of the society to which it is attached .” Tamanaha (note 18), 1, 9–10 . Brian Z . Tamanaha, Law as a Means to an End: Threat to the Rule of Law (Cambridge 2006) .

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limited circumstances36, while the concept of law in connectedness with society may be extended to cover various types of law embedded in the comprehensive structure of each society . It seems necessary to examine possible relationships between legal development and political, economic and social development by entering into the inside of the connectedness of law and society . This seems to me to be a most important topic for achieving the thicker theory of law and development .37 If we could construct some models of the relationship between legal development and political, economic and social development, they would be eminently useful basis on which to create an academic field of law and development as distinct in social sciences in general and in the studies of law and society in particular .

36

37

“Law (of every kind) should be demystified and understood as a tool or instrument, a resource of power and way of doing things that draws upon symbolic connotations of rights and good, but with no necessary connection to custom, consent, morality, reason, or functionality in a social arena .” Tamanaha (note 18) 240 . See Section 1 above corresponding with note 6 .

Takehiro ohya* (Tokyo/JPn) legal assisTanCe a view

and

legal develoPmenT

from JaPan

In his paper,1 Professor Tamanaha differentiates “law and development” movement, which means artificial intervention from outside to make possible the development of legal systems in a country, and “legal development”, which means the development of legal systems from within the country . Although I agree with this dichotomy and even with Professor Tamanaha’s stance to support the latter, I nevertheless wonder how we may help to accelerate legal development in other societies . A possible answer could be, “Leave it to them and forget about it .” In other words, if each society has its own way of legal development and only people born and brought up in the society can find out how they can establish legal development, we should simply settle for Kipling’s dictum: “Oh, East is East, and West is West, and never the twain shall meet .”2 On the other hand, if this is not the way to take, and one which Professor Tamanaha certainly does not take, we need to consider another possible answer, where Japanese experience could work as a country successfully “modernized” its legal system . It may sound as referring to the post-war reform to Japan by U . S ., which could be a hidden source of the idea of legal assistance as international aid, while its formal origin was found in 1960’s American projects as shown in the memoir of Professors David Trubek and John Henry Merryman .3 Many legal reforms to establish Japanese new regime were made under the Allied occupation to Japan, from Japan’s defeat in the Second World War in 1945 to the recovery of independence through San Francisco Peace Treaty in 1952 . In the center of reform was the Constitution of Japan, promulgated in 1946, to introduce such systems as symbolic emperor or pacifism to refrain from keeping any “war potential .”4 We should note that reforms in the field of public law, which were avoided carefully in the “law and development” movement, lay at its center, as can be seen in the agrarian reform that fundamentally and forcefully changed the existing order of farmland property .

* 1 2 3

4

Professor of Keio University Faculty of Law, Visiting Professor of Nagoya University . Brian Z . Tamanaha, The Primacy of Society and the Failures of Law and Development, Cornell Int’l L. J. 44 (2011), 209–247 . See, Rudyard Kipling, The Ballad of East and West . John Henry Merryman, Law and Development Memoirs I: The Chile Law Program, Am. J. Comp. L. 48 (2000), 481–499, and David M . Trubek, The “Rule of Law” in Development Assistance: Past, Present, and Future, in: The Rule of Law in Development: Past, Present and Future (CALE Books #2), ed . Yoshiharu Matsuura, Nagoya University, 2005, 1–18 . “In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained . The right of belligerency of the state will not be recognized” (the Constitution of Japan, article 9 paragraph 2) . Japanese current military power, established in 1954, thus has been called as “the Self Defense Force”, which shall be in somewhere between the “war potential” and police power, according to the Japanese government’s official interpretation of the article issued by the Cabinet Legislation Bureau .

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This post-war reform probably was recognized as a successful experience from American viewpoint . Through 70 years of post-war history, Japan has continued to be a loyal ally to the U . S ., even without making any amendment to the Constitution set up under the irregular circumstance of being occupied . The national security team in George W . Bush administration to consider measures to take after military overthrow of the Iraqi dictatorship was reported to apply the “Japanese Model” . Indeed, President Bush himself said as much in the 60th Anniversary of V-J Day in 2005: “With every step toward freedom, the Japanese became a model for others in the region . With every step toward freedom, the Japanese became a valued member of the world community, a force for peace and stability in the region, and a trusted and reliable ally of the United States of America . (…) Today we must not forget the lessons of the past, and the lesson of this experience is clear: The most powerful weapon in the arsenal of democracy is the spirit of liberty . In the 20th century, the spirit of liberty worked to spread freedom from Japan and Germany to Eastern Europe and Latin America and Southeast Asia and Africa .”5 This may suggest that the Bush administration, or at least some section of the American establishment, considers that the post-war reform in Japan was a successful model, while the “law and development” in the 1960s was not . But is that true? The fact is that not all aspects of Japanese post-war reform were successful or long-lasting, which is one reason why some Japanese were felt uneasy about the American evaluation of the “Japanese model .” It is true that the agrarian reform was successful . Using the Allied Forces as pressure, the Japanese government bought almost all farmland owned by private landowners forcefully and in very cheap price, in order to sell it to tenant farmers . About 80 % of tenant farmland was transferred to former tenants by this reform, thereby creating a vast number of self-owned smallholdings .6 As a result of this reform, Japanese society as a whole became conservative enough to support long-standing administration of the Liberal Democratic Party, which could be said to have been a positive side effect . On the other hand, the plan to dismantle the national police force to establish an American style city/county police system was withdrawn, almost as soon as it was introduced .7 The “scientific” method of managing human resources by classifying every post in the government according to the skills, knowledge, and qualifications required was introduced to Japanese government under pressure of the U . S . occupation, but soon suspended, since such classification shall take time . Until the day such work will finish, different (Japanese) system “shall be deemed as the position classification plan (…) accommodates the claim of this act, and be valid until its 5 6

7

George W . Bush, Remarks on the 60th Anniversary of V-J Day in San Diego, California, August 30, 2005 (http://www .presidency .ucsb .edu/ws/?pid=64853 (The American Presidency Project)) . Nōchi Kaikaku Shiryō Hensan Iinkai [Editorial Committee for the Agrarian Reform Material], Nōchi Kaikaku Shiryō Shūsei [Collected Material of the Agrarian Reform], vol . 11, Nōsei Chōsakai, 1980, 35–54 . As the result of this reform, the average area of farmland each Japanese farmer has came to be about 1 .5 ha (excluding Hokkaidō, where a farmer owns more than 20 ha in average), which is far less than U . S . or European countries, and pre-war Japan . See, the Ministry of Agriculture, Forestry and Fisheries (Japan), Statistics on Farmland, http://www .maff . go .jp/j/tokei/sihyo/data/10 .html . The (old) Police Act (act no . 196 of 1947) to introduce city/county police system was repealed by the (new) Police Act (act no . 162 of 1954), to establish current police system consisted from prefectural polices and the Police Agency in the central government .

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amendment .”8 However, without coming into effect for more than 60 years, it was officially repealed in 2009 at last . Against the idea to Latinize Japanese writing system to improve literacy rate, Japanese scholars proposed holding a nationwide survey, which showed that Japanese literacy rate was already higher than it was in the United States .9 As for the pacifism, a central aspect of the Constitution of Japan, it was utilized by the Japanese government as a means to justify rejecting American demand to increase armament to offer help in the Korean War, and hence to avoid spending a large war expenditure in order to concentrate on economic (re)development . Even the agrarian reform, which I have described as a success, was pointed out to be already planned in wartime Japan by so-called Reformist bureaucrats .10 They tried to block natural resistance from existing landowners, especially those who held large societal and political influence with the help of the military, but the plan ended in failure because of the Japanese defeat in the war . If this understanding is correct, however, it could be said that Allied Powers was nicely taken in to realize the reform they planned, by providing power to exclude resistance instead of Japanese military they have fought with . An important question arises here . Why could the Japanese reject, modify, or even utilize the “American reform” as such, and thus gain the autonomy in legal development? We need to remember here that the post-war reform was not the first total legal reform in Japan . Since the Meiji Restoration in 1867 Japan had experienced rapid modernization by importing Western civilization . In the background lay the idea to differentiate civilized countries and uncivilized ones, whereby the latter were to be colonialized by the former, to “improve” its humanitarian conditions . Japan at that time was thought to be an independent country prima facie, yet low enough to be forced to accept unequal treaties to its disadvantage . It was thought that Japan would inevitably be colonialized by the West unless Japan itself achieved a comparable level of civilization . Introducing the Western legal system with help of foreign advisors to fit the civilized countries’ standard was the choice the Japanese settled for in this situation . We should note here that it is inappropriate to refer to such help as legal “assistance” from developed countries, since it was the Japanese themselves that paid a vast amount of money to employ foreign advisors . Japan also casted a large budget to send brilliant students to study overseas to absorb Western civilization . The modernization established by the Meiji government was an outcome achieved through such painful efforts .

8 9

10

Article 29 paragraph 5, the National Public Service Act (act no . 120 of 1947), after 1948 amendment (act no . 222 of 1948) . The articles to prescribe position classification plan was deleted in 2007 amendment (act 108 of 2007) . In 1948, “The Japanese Literacy Survey” was made by the Ministry of Education (Japan) against about 17,000 populace aged from 15 to 64, to show only 2 .1 % couldn’t read or write Kanji [Chinese characters] . Tetsuji Atsuji, Sengo Nippon Kanji-shi [Postwar History of Kanji in Japan], Shinchōsha, 2010, 40 . Yukio Noguchi, 1940-nen Taisei: Saraba Senji Keizai [1940 Regime: Farewell to Wartime Economy], revised ed ., Tōyō Keizai Shinpōsha, 2010, ch . 4 .

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The Meiji legal reform, promoted through such measures, could be divided into two stages . In the first stage, as shown in the cases of the first modern civil code and commercial code enacted in 1890, the drafts were written by foreign advisors, i . e . French advisor Gustave Boissonade for the former and German advisor Hermann Roesler for the latter, both of which efforts ended in failure . The typical instance was the commercial code .11 Roesler was said to be by no means a narrow-minded man, striving as he did to base the new Japanese commercial law mainly on its German equivalent, while incorporating the useful points of the French bankruptcy law . On the other hand, he was said to almost ignore Japanese commercial custom, because he considered them to be vague and antiquated . In reality, however, Japanese commercial practice was in a way very highly developed even compared with Western countries, for instance to realize world-first futures market12 . As Roesler lacked the ability to understand the reality of commercial transactions in Japan, his commercial code was drafted without connection with the Japanese reality and thus was not supported by the Japanese merchants, though they did not deny that Roesler had well-meaning intentions . In the case of civil code, Boissonade was wise enough to investigate and respect Japanese customs current at that time, even when some Japanese politicians, wanting to amend unequal treaties hastily, insisted on simply translating the Code Napoléon into Japanese as the country’s new civil code .13 While Boissonade argued that as the foundation of society the civil code needed to be supported by all citizens, his version was also heavily criticized for depending on modern ideas and for flying in the face of the Japanese traditional social system, as was shown in the slogan “Civil Code Comes, Loyalty Goes .”14 Although the Boissonade code was passed in the parliament, it was abolished without coming into effect . In the end, the reform was made through original drafting by young Japanese returning from their studies abroad . The earliest case was the Constitution of the Japanese Empire, promulgated in 1889 . With the help of foreign advisors and modeled to some extent on institutions of Prussia, the Constitution was drafted by those Japanese intent on their own concept of the ideal government . Likewise, civil and commercial codes were also re-drafted by the Japanese who had studied abroad . We may draw three lessons from all this . First, for any law to be accepted in any society, it needs to fit with local customs and habits, which are not easily understood by outsiders . Second, but whatever the content, (collective) self-decision shall be understood as an important ground for obedience to, or respect of, the law . As stated above, the civil code re-drafted was not particularly original or unique; what was important, however, was that it was drafted and enacted by the Japanese them11 12 13

14

The (old) Commercial Code (act no . 32 of 1890), came into effect partly in 1893, fully in 1898, to be repealed by the (current) Commercial Code (act no . 48 of 1899) . Dōjima Kome-kaisho [Dōjima Rice Exchange], established in 1730 . Shinpei Etō, the first Shihō-kyō [Minister of Justice], is said that he ordered his staff to translate Code Civil into Japanese and just change its title to “Japanese Civil Code” . This episode is appeared in Kabuto Kuninori Danwa [Memoir by Kuninori Kabuto], quoted in Ryuuichi Nagao, Meiji Hōgaku-shi no Hikigeki [Tragicomedy in the History of Meiji Legal Studies], Hōgaku Kotohajime [The Origin of Legal Studies], Shinzansha, 1998, 195–196 . eg . Yatsuka Hodumi, Minpō idete Chu-kō horobu [Civil Code Comes, Loyalty Goes], Hōgaku Shinpō 5 (1891) .

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selves . These two points seem to support what Professor Tamanaha says in his paper . The third point I would like to make here, however, the ability to make such decision and necessary information to be foundations to such decision could probably be given by outsiders . Professor Tamanaha points out that the “law and development” carried out by many countries has a common problem: scarcity of knowledge about local situations, mainly owing to the fact that the professionals committed to such projects cannot stay for long .15 This criticism may, however, puzzle some people, since in the Japanese legal assistance made for many Asian countries in these decades, visiting Japanese professionals usually stay for a year or even longer . Nagoya University, for instance, provides four-year educational courses on Japanese language and Japanese law in foreign universities,16 while accepting many lawyers and judicial officers from recipient countries of legal assistance for masters’ and doctoral program given in Nagoya . The objective of these assistance is to develop “legal mind”, the way to think as lawyers appropriately, not only to cram them with information in the short term . Once in the age of imperialism, on the beginning of rule over Taiwan and Manchuria, it is well known that the Japanese government undertook a wide-ranging, exhaustive survey of the customs of those regions . Setting the problem of colonization itself aside, in the background lay the strong recognition of the need to understand local situations, especially if the legislation by outsiders was to be properly instituted . We should note that the Japanese colonization of Taiwan, though very brief in historical sense, succeeded to eliminate the bad habit of opium smoking . It would be fruitful to reconsider lessons of the pre-war Japanese legal reform (though it could not, of course, be called “assistance”), after our previous experience of the failed reforms undertaken by foreigners . Let me now consider something which may sound contrary to the foregoing . Professor Tamanaha criticizes the law and capitalism agenda as based on a Western premise, namely, that freely alienable land property system will increase its value and then promotes economic development . In many situations “community life is anchored to, and resolves around, the land in ways that rootless Western societies have long forgotten .”17 Social ties or relations are closely connected with land property, and women’s interests are in many cases protected within such traditional communal relationships .18 I am reminded of a joke here – a joke never to be taken seriously, but “What is the common feature of the Four Tigers?”, i . e . South Korea, Taiwan, Hong Kong, and Singapore, those Asian economics that grew rapidly in the 1980s . The answer is, “they are places that were once invaded by the Japanese Empire .” Japan tried to “modernize” the colonies, as can be seen in Taiwan and Korea, according to its own ideas, which resulted in the devastation of traditional ways of life and community . As the traditional ways did not necessarily fit the modern principles of justice, their

15 16 17 18

See, Tamanaha (note 1), 237 . The Research and Education Center for Japanese Law, Nagoya University, established in 7 countries in Central, North, and Southeast Asia . See, http://cjl .law .nagoya-u .ac .jp/ . Tamanaha (note 1), 239 . See, Tamanaha (note 1), 239–240 .

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destruction may have had a positive effect on the countries’ own economic development . In addition to opium smoking in Taiwan, slavery in Korean Peninsula was also abolished by the Japanese colonial government .19 Perhaps we can consider this further by making a comparison with the Philippines, where the United States tried to establish efficient colonial government by preserving traditional power structures . The same idea could be applied to the agrarian reform in Japan, part of which had already been planned in the pre-war era, and all of which most Japanese welcomed when it finally arrived . Then why is it that we could not do this with our own hands? The answer has to do with the local power structure in pre-war Japan . Professor Tamanaha indicates that if we stop all the “law and development” activities, “a different set of legal development projects would emerge .”20 “Without enjoying an artificial boost from money and pressure from the outside, legal development projects must marshal sufficient local support from influential players to prevail in local socio-political contests over reform .”21 However, this clearly was not the case in pre-war Japan . In a sense, the Japanese invasion to Manchuria was an alternative to this situation . While redistributing property and taming inequality was a widely shared ideal, powerful local landowners who did not want to lose their own property always resisted such reforms by using the pre-war Japanese democratic system as a means to that end . In order to supply a sufficient amount of farmland to the tenant farmers without infringing the rights of local landowners, the Japanese army then decided to acquire necessary land and resources from elsewhere .22 All this may remind us that China is now facing the need to equalize its society, even though those in power will not abandon their vested interests . Anyway, as Professor Tamanaha has emphasized, it would be true in many cases that “external interventions into any society face additional barriers .”23 In some cases, however, such interventions can be utilized to suspend internal antagonism and justify the inevitable infringement of existing property rights, necessary for making reforms supported by the majority of society . In conclusion, although thoughtless “law and development” (or legal assistance from outside) should be useless and harmful as Professor Tamanaha contends, there may well be cases where such intervention from outside enhances legal development in certain societies . First, when such assistance is to educate local lawyers or judicial officers to develop their legal thinking abilities . Second, to provide scientific knowledge and statistical information to help local people to decide for themselves . In short, such assistance to enhance autonomy could be considered fruitful and necessary . Third, to remove obstacles to the democratic process and fair decision, although this idea may be a little more controversial than the other two . As to the 19 20 21 22 23

In 1910, Chōsen Sōtoku-fu [the Governer-General’s Office of Korea (Japan)] introduced the new family register to Korea to replace old registry, which contained descriptions on the citizens’ hereditary status as nobi [slave] or baekjeong [untouchables] . Tamanaha (note 1), 242 . Id . Please note that I’m not trying to justify the Japanese invasion at the time here, but to give an explanation to recognize (a part of) their motivation . Tamanaha (note 1), 243 .

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last point, we can hardly afford to be so optimistic as to simply wait and see what form this original legal development will take shape locally, especially if we accept the lessons from Khmer Rouge (or Democratic Kampuchea), where the atrocity of the mass murder of its own citizens did not stop until the military intervention of Vietnam . The big problem is, naturally, it is hard for us to foresee the result (and side effects) of any reform: no one lived in the wartime could expect that the Japanese colonization could enhance equality in the society after 30 years . I do not deny at all that it is very difficult challenge to distinguish advantageous intervention to certain society from which is not . I can suggest, however, that it could be possible to specify certain elements of “failed society” in which intrinsic reforms are systematically oppressed, or absolute injustice, which shall be avoided by any measure by anyone inside or outside such society .

ko haSegawa* (SaPPoro/JPn) how

To

deal

wiTh The

mulTiPliCiTy

of

law

CommenTs on Professor brian Tamanaha’s TheoreTiCal Challenge legal PosiTivism

To

1. inTroduCTion The 2014 Kobe Lecture delivered by Professor Brian Tamanaha, “Insights about the Nature of Law from History,”1 is clear in its objective and rich in its substance . It is, as I understand it, basically a critical reflection on the dominant view of legal positivism; it potentially includes not a flat denounce of that view but rather the legal-philosophical challenge to that view based on Professor Tamanaha’s broader perspective on law . I wish to characterize the theoretical orientation of Professor Tamanaha as the multiplicity of law, as I call it (not really the plurality of law, as I will explain later in this comment), and I agree with most observations on law he articulated in this stimulating lecture . Indeed, it is very rewarding for us to reflect on many facets of law from the social-scientific perspective which Professor Tamanaha wishes to endorse . The history, anthropology, sociology and psychology of law certainly show us in its way various and rich faces of law, diachronically, synchronically, cross-contextually, and globally . As Professor Tamanaha emphasizes, legal theory is now facing with a great transformation of law today which requires a refreshing approach . I share this ambition with Professor Tamanaha, though it is in a little bit different perspective from his . And this difference makes the central concern of my comments on his stimulating lecture . My comments in the following include three points . – (1) the legal-philosophical implications of Professor Tamanaha’s view on the multiplicity of law; (2) the ways of theorizing the multiplicity of law; and (3) the politics of law which orient legal theorizing in general . I shall articulate these points respectively . 2. legal-PhilosoPhiCal imPliCaTions mulTiPliCiTy of law

of

Professor Tamanaha’s view

on The

As Professor Tamanaha discussed penetratingly, the view of legal positivism tends to ignore the historicity, contextuality, imperialistic character, and current transnationality of law due to its narrow focus on national and municipal law . I agree with him about almost all the observations on the shortcomings of legal positivism . As he noted in his lecture, there emerge various sorts of law in human society since the birth of human civilization . Legal positivism tends to deny the validity of those various kinds of law on the condition that there is no recognition by positive law . If some artificial law such as statute, precedent or other official decisions and related * 1

Professor of Hokkaido University In this volume, 17–45 .

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Ko Hasegawa

documents does not recognize diverse sorts of law as valid, then, by legal positivism, these law are denied their own force as law; which leads to the narrow-sightedness of this view that Professor Tamanaha wishes to counters in facing with such diversity of law in human society . However, while this criticism can be addressed to classical legal positivism, it is not the case for the recent theoretical developments of legal positivism . Since H . L . A . Hart elaborated the union of primary and secondary rules for the characterization of legal system2, the fundamental point of legal positivism now lies in whether the ultimate criterion of law which makes law valid is whether there are certain facts of relevant social practice to sustain law or not . Even if the legal system in question may have significant relationships to conventions, moralities and other public norms and values in a society, these can be a part of law only when they are factually sustained by certain human practice .3 Then from this sophisticated viewpoint, if Professor Tamanaha’s outlook on the various faces of law orients itself to the divergent facts of law found in history, anthropology, sociology and psychology against the monolithic view of national and municipal law in legal positivism, the point of departure for Professor Tamanaha from legal positivism is misconceived, as the problem is not about the variety of law which legal positivism allegedly cannot capture but rather about the case that Professor Tamanaha’s point is itself a very positivist viewpoint, though much broadened . Thus, it seems to me, the real theoretical claim of Professor Tamanaha against legal positivism must be concerned with the problem if there is any essential and overall criterion of law such as the factuality of law for the identification and validity of law . Of course, current legal positivists answer to this question affirmatively, whatever criteria they wish to claim . Although the contents of these criteria might be Hartian, Razian, Marmorian, or Shapiroan,4 the point of these criteria is common in that every criterion concerns the existence of some factual state of affairs on basic social convention concerning law . In this regard, Professor Tamanaha’s view should, if it stays as a criticism of legal positivism, rather be understood as claiming a polymorphic criterion for the concept of law: being different from the criteria of legal positivism above, he might be proposing the view that there exists the criterion of law in which the mere factual reference to some particular social practice cannot work without over-viewing the multiplicity of law and this new view of law has to imply some non-factual element that can counter legal positivism without being absorbed in its sophisticated form . In other words, the real problem for our discussion is to be if it is possible for Professor Tamanaha to claim something non-factual concerning the basis of law (such as ethics or morality) from his own viewpoint of the multiplicity of law, and if this is implied by Professor Tamanaha’s social-scientific perspective . The important question to ask is whether this multiple social-scientific view of law could be non-factually relevant to the identification and validity of law, as Professor Tamanaha tries to suggest . And the answer would be only that the claim that 2 3 4

H . L . A . Hart, The Concept of Law (Clarendon Press 1961) Ch . 6 . Cf . Scott Shapiro, Legality (Harvard University Press 2011) Ch . 4 . Cf . Hart, op. cit.; Joseph Raz, The Practice of Values (Clarendon Press 2003); Andrei Marmor, Social Conventions (Princeton Univerity Press 2009); Shapiro, op. cit. .

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the normativity of law has to be understood in accordance with social sciences is itself a methodologically normative claim which cannot be implied in the positivist view of law . Because, I sense that sophisticated views of legal positivism may regard Professor Tamanaha’s criticism as theoretically irrelevant . Is it then possible for Professor Tamanaha to revitalize his criticism? It may be suggested that, while legal positivism has a certain conceptual claim, Professor Tamanaha holds an empirical claim for law . In this case, the latter claim can be relevant as an empirically substantive refutation of a mere conceptual claim . But, as Ronald Dworkin incisively pointed out,5 since there are many forms of legal positivism, Professor Tamanaha has to beware what sort of positivism he wishes to counter from what sort of basic appreciation of law . If law it to be understood as a collection of multiple facets from a social-scientific perspective, then it must perforce be asked why Professor Tamanaha, unlike legal positivists, regards social-scientific aspects as foundationally and non-factually important for law . Let us recall: H . L . A . Hart wished to explicate the intrinsically essential character of law as the union of two kinds of rules, which is distinguished from other normative practices in society; against this, Dworkin argued that the reference to morality and the requirement of principled integrity is internally important for law because there can arise theoretical disagreements about the Hartian rule of recognition and also because there are right answers in the argumentative activity of legal practice . With this controversy in mind, my question to Professor Tamanaha is put in the following way: are there any essential elements for the fundamental features of law other than or like Dworkin’s that are to be explicated only by the social-scientific view of law? If this question is just a matter of methodological stance for the understanding of law, we have to return to the problem of why this is necessary and how it is possible . Of course, let me add, my thinking above has assumed that the problem of what is law lies in the articulation of the definitive features of law and that Professor Tamanaha has to address to it . If he would deny this way of thinking, his claim in this regard might be postmodern in that there are no definitive features of law, positivistic or interpretive . Divergent facets of law could be counted as law without any sort of essentiality . This could be an attractive standpoint, and yet I might wonder again how we could talk about “law” as some sort of unit of normative practice? 3. ways

of

Theorizing

The

mulTiPliCiTy

of

law

Next I wish to comment on the methodological stance for understanding the multiplicity of law . Professor Tamanaha talks in his lecture about the social-scientific multiplicity of law, stating that this multiplicity is relative to various perspectives in social sciences . In other words, this multiplicity of law entails multiple angles from which we can grasp divergent features of law . In this regard, several angles look compatible with each other in grasping a unit of law, whereby the unit of law is seen differently from anthropological, sociological, or psychological and other social-scientific viewpoints . This is indeed significant for understanding various features of

5

Ronald Dworkin, Justice in Robes (Harvard University Press 2006), 9 ff .; 26 ff .

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law by, say, taking different theoretical glasses in turn . One will be surprised to find divergent sceneries for one unit of law . Still, this angle-oriented view of the multiplicity of law, it seems to me, has some theoretical shortcomings . One problem is this . As Professor Tamanaha has emphasized in his lecture, law is embedded in culture with various organic relationships to other kinds of norms in society . So we have to understand the significance and functions of law in a broader cultural perspective in which social-scientific viewpoints are useful to grasp such variability of law without being involved in inadequately positivist constructions of the rigidity and unity of law . Then law is seen as organically connected to custom, patterns of social behavior, legal consciousness, and various human activities, and thus is understood as such a mélange phenomenon without any clear boundaries . I basically agree with Professor Tamanaha that this is in a desirable direction for understanding the reality of law . For, we cannot deny the unbounded extension of law in this globalizing and differentiating age . Still, the real question to consider is, as I understand it, what sort of organic relationships can exist between law and other norms in society . For example, some norm of statute may be abstracted from some custom, this norm of custom may be strongly supported in the legal consciousness of a particular people, the legal consciousness may have been sustained by a certain pattern of human relationships in that community and influenced from the modern history of that particular society, and so on . Right, and yet how can we say that this sort of characterization is substantially rich? Is it enough for us just to recognize various relationships between those factors? If enough, there will surely be some therapeutic significance for us not to get stiffed in a narrow view of law like legal positivism . Still, is there any constructive significance in our learning more about the figure of law in question? If any, then what? Meanwhile, another problem arises . Although the angle-oriented view may give us different perspectives on law, we are left with the question how to integrate those angles in order to understand the nature of the multiplicity of law . Whereas we can learn divergent facets of law, we cannot be sure how to combine them to understand law in its entirety . Especially when we find in each facet its own adequacy, we will be at a loss . Should we choose one of those facets as the true picture of law, or should we settle any unified view of law with an adequate configuration of those facets? And if we do, what would be the ground of the selection or the unification? I am suggesting here that we need not only various perspectives for law but also the way for theorizing the multiplicity of law in a constructive way . I am much curious about Professor Tamanaha’s thoughts on these points . For our discussion, let me impart my own thought on this subject . My own view of the multiplicity of law is not angle-oriented but rather ingredient-oriented . In Western and East Asian societies, for example, there are divergent ideas of law which cannot be summarized by the simple contrast between the Western and the East Asian . In the West, there is the idea of natural law, the idea of legal positivism, the idea of free law, the idea of living law, the instrumentalist idea of law, and so on, while in the East Asia there is the idea of Confucian morality/law, the legalist’s command idea of law, the socialist idea of law, the Muslim idea of law, the Hinduist idea of law, a certain amalgam of Western and native law, and so on . What is important here is that there are several combinations of these ideas in any one idea of law in both West and East .

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In East Asia, we can say that some trans-human law may be law as standard, while some human law may be law as will and the rest be law as convention .6 While these varied ideas of law look in principle exclusive and conflicting with each other, they work combinatorially in a certain societal setting . Particularly in Japan, divergent ideas of law in West and East Asia have been introduced through many cultural channels, and people have been trying to maintain since old days some integration among them at various societal levels such as formal institutions, human consciousness, local customs . We can guess from this experience that, in Japan, various ideas of law have been simultaneously working in some unit of law with some interesting way . This situation is also considered common to other East Asian practices of law which have been experiencing the receptions and transplants of law in the process of modernization since the 19th century .7 In East Asia that has been experiencing the entanglements of diverse ideas of laws and norms in various societal contexts in the course of modern history, we have to reach a new understanding of the complexity of law for finding the interaction, or even the fusion of diverse ideas of law at various societal contexts . The real question now is concerned with possible combinations of those ideas in a set of law, specifically with how the combination of legal ideas can determine the idea of law in East Asian societies . One way to do so may be to heed the complex dynamism in the idea of law, as has been illustrated in H . Patrick Glenn’s work on legal traditions of the world .8 As Glenn perceptively showed, the concept of law is active in accordance with diverse legal traditions . There may be many conceptions of law along with those legal traditions such as chthonic, Talmudic, Islamic, Hindu, civil, common, Confucian, and the like . Here again we have to consider the combinatory operations of legal traditions in the world in order to understand the significance of the ideas of law, as Glenn suggests in terms of the “confluence” and the “sustainable diversity” among those traditions .9 In this regard, we should hold a pragmatic sense of selectivity for relevant normative ingredients in law .10 6 7

8 9 10

Cf . Beverley Brown & Neil MacCormick, Law, Philosophy of, in: The Shorter Routledge Encyclopedia of Philosophy, edited by Edward Craig (Routledge 2005) 546–550 . I understand here that law reflects the diverse cultural requirements or precepts in their own domains through its normative ingredients, even if some religion such as Muslim accords law with religious credo . But this kind of view is to be elaborated more with some conceptual analysis of East Asian law . H . Patrick Glenn, Legal Traditions of the World (2nd . ed .) (Oxford University Press 2004) . Glenn, op. cit., 13 ff .; 20 ff .; 353 ff .; 357 ff . . Glenn suggests here the general possibility of various combinations or acceptances among legal traditions, based on his unique view of the information-flow nature of tradition . My attention to the ingredients of the idea of law is close to it . My thought is mainly concerned with what kind of ingredients are to be identified to sort out Western and East Asian ideas of law, or to single out whatever sort of legal ideas in various cultural contrasts (say, between primitive and civilized law, or between official and unofficial law) . These ingredients are the working reasons for effectuating the ideational space of law with sometimes getting together or conflicting with each other in determining the ideational character of law . As for the general characteristics of normative ingredients, we may distinguish three kinds such as abstract ingredients, intermediate ingredients, and concrete ingredients . And in each ingredient, we can identify the aspect of form, substance, and boundary/relation . Of course, there may be other identifications of normative ingredients and their aspects . Also, to add, these ingredients are the characterizing elements of legal institutions, people’s consciousness, and local customs in society .

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To recapitulate, the angle-oriented view is not adequate enough to capture the dynamic unity of law . Although my own view has its limitations, it at least centers on some essential combinatory relationships of various legal ingredients as means of understanding the significance of law . Professor Tamanaha’s view on the multiplicity of law, on the other hand, is unclear about this problem . 4. PoliTiCs

of

law

for The

mulTiPliCiTy

of

law

The final point of my comment concerns the interpretive attitude for law, one to which Professor Tamanaha seems committed . As Ronald Dworkin incisively argued, every human community in which a practice of law is shaped with the interpretive activities of its members bases itself on a certain “paradigm of law”, which determines the basic mode of the working of law in community .11 What is this “paradigm of law” is itself a deeper philosophical problem for understanding the concept of law . And how to capture this “paradigm” is the very fundamental element of the idea of law; this is related to, as I understand it, the point of the politics of law . In fact, my discussion in this comment is itself an indication of the politics of law: the orientation for understanding law as a complex of various legal ingredients, which in turn is an attempt to counter Professor Tamanaha’s politics of law as a dispersed set of various facets . I wish to emphasize here that the problem of the basic perspective on law, as discussed in the previous section, is a result of the contest for the politics of law .12 I hope Professor Tamanaha will somehow agree with the significance of this sort of problem-setting, even if with some qualifications of his own, when he tries to attack the monolithically systemic view of law in legal positivism . Still, there seems to be a disagreement between him and myself about the proper politics of law for overcoming the deficiencies of legal positivism . From my viewpoint, Professor Tamanaha’s politics of law is characterized as the discontinuation of law through social-scientific perspective on the multiplicity of law, while mine is characterized as the interconnection of law through the ingredient-oriented understanding of the multiplicity of law . I wish to ask Professor Tamanaha whether this characterization does justice to his view of law . If his view is characterized as above, it may be said that my position is closer to the ideal of the rule of law than Professor Tamanaha’s . For, my view tries to hold some integrity of law in terms of the organic constitution of law, while, it seems to me, Professor Tamanaha’s is not clear about the significance of the rule of law when he tries to break the view of legal positivism into a more varied understanding of law . If his view tends to be somewhat anarchistic as regards the multiplicity of law, one wonders how his view can sustain the rule of law . In this connection, although its perspective may be narrower than the social-scientific or principle-consistent view of law, legal positivism has a certain force in maintaining the rule of law . The politics of legal positivism lies in the maintenance of law’s systematicity and transparency through the discrete set of rules; which also 11 12

Ronald Dworkin, Law’s Empire (Harvard University Press 1986) 89 f . I mean here that how to grasp the figure of law is the problem of the methodological principle for the rational model-change in law, which is a matter of the enhancement of the role of law in a society .

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implies a stable unity in law . Here the multiplicity of law is not considered workable, and yet this positivist position can escape from the difficult problem of dealing with the multiplicity of law by circumscribing the boundary of law . This has the virtue of accurate law that may strictly satisfy the Fullerian conditions of the internal morality of law much better than the multiple perspective on law . Meanwhile, the interpretivist view of law with a principled understanding also maintains the virtue of accurate law, though it may convert the procedural emphasis on positive morality in law to the substantive relevance of critical morality in law . As Dworkin suggested, these two views are different in identifying the point of legality: legal positivism tries to endorse ultimately the ideal of efficiency and the interpretivist understanding of law does to endorse ultimately the ideal of integrity .13 Yet, these two points have in common the fact that both try, if in different ways, to establish the distinctive working of law . In contrast to this, Professor Tamanaha seems to emphasize the non-distinctiveness of law . In his view, law is to be understood as dispersed or diffuse in accordance with various facets of societal order; namely, law is really multiple . Nevertheless, does Professor Tamanaha wish to hold some integral view of law? And, if so, what sort of “integrity” is possible for him? Or, can we say that Professor Tamanaha’s point of the politics of law is deliberately postmodern in that he just unmasks the variations of law in a legal system? Of course, the problem of the politics of law is difficult to address properly, simply because there is incommensurability of values between conflicting politics for law . It is the problem of “politics” in the sense that there are different “philosophies” in perceiving and endorsing law . However, if various laws work as a part of a societal order, then we must find some sort of integrity in it . And what I am questioning is not the problem of credo but rather the problem of the possibility for approaching the nature of law . In this regard, the possible way for Professor Tamanaha, whether it be discontinuous or postmodern, does not seem fitting to the actuality of law today or to his stance against the dominance of legal positivism . When the multiplicity of law is to be recognized in some adequate way, there is likely to be a polarity whereby the radical view of the multiplicity in question can be deconstructively anarchistic, while the moderate view of it can be constructively integrationist . What kind of stance we should take in this polarity is a problem of the politics of law, concerning which I find myself standing on the side of the integrationist camp . I wish to learn what standpoint Professor Tamanaha intends to take in viewing law from what sort of stance to the politics of law . One possibility here for Professor Tamanaha might be, as I understand he tries to suggest, to employ some sort of legal pragmatism . By this I mean that there is the standpoint that one has a higher capacity of well-balanced legal judgments in accordance with the circumstantial features of a particular case by considering various relevant values and ideas . This standpoint also implies the thought that there can be some balancing way of grasping the law among various aspects of law .14 For Professor Tamanaha, legal pragmatism may show the possibility of an integrative stance for the multiplicity of law . Yet, I sense that there are at least two forms in this sort of 13 14

Cf . Dworkin, Justice in Robes, Ch . 6 . Dworkin, op. cit., 21 ff .

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legal pragmatism, one being detaching pragmatism and the other infusing pragmatism . The former is the position that when judging the balance among various aspects of law one has to find the proper aspect of law for the case in question . This aspect may vary in accordance with cases, sometime anthropological, or sometime psychological, and so on . The latter is the position that when judging the balance among various aspects of law one has to find the proper relationship of the aspects of law for the case in question . This relationship may vary in accordance with cases in some cross-nit way .15 I imagine that these could be strategies for Professor Tamanaha in his concern to deal with the multiplicity of law in terms of the divergent social-scientific angles of law . But the problem here is which of two pragmatisms Professor Tamanaha would endorse . And if neither, what sort of legal pragmatism he would settle for? Of course, we may not simply come up with some overall value that can determine the politics of law equivocally in today’s differentiating world . We are entering a world of value pluralism and recognizing divergent normative beliefs and traditions mingling with each other . In this situation, I sense that we are left with two ways for the politics of law . One is the way of wider interpretivism that is a Dworkinian extension for exploring the complexity of normative values with some broader intellectual integrity in normative traditions . The other is to reach to deep reality of complex societal facts that is to be explicated by various social-scientific eyes . Professor Tamanaha would take the latter way with the recognition of the complex plurality of law from somewhat detached empirical standpoint and with the virtuous orientation of ordinary people in the historical development of the wisdoms of law . Although this would be an understandable move taken in the face of the multiplicity of law, the philosophical question remains by what sort of hope in law we should deal with this multiplicity .

15

In some case the relationship may center around the anthropological aspect of law, while in another case it may center around the psychological aspect of law .

keiSuke kondo* (kyoTo/JPn) resCuing legal PhilosoPhy CommenT

on

Tamanaha**

1. inTroduCTion Brian Tamanaha has recently introduced what he calls ‘social legal theory’ as ‘the third pillar of jurisprudence,’ an alternative to natural law theory and legal positivism1 . He claims that for several centuries there have been so many variations of the theoretical inquiry into law that commonly focus on its social aspects, and we should now appreciate the importance of this jurisprudential tradition again . And, of course, as a sociological jurist, he himself is one of the leading proponents of this type of study today .2 Furthermore, Tamanaha elsewhere presents arguments against legal positivism, namely the one he designates as the ‘philosophical’ type of general jurisprudence, or simply as legal philosophy .3 These arguments, though seemingly cogent, are nevertheless, to my mind, wrong-headed . In this paper, I will examine two sorts of criticism he makes against the philosophical approach to law, each of which I dub as internal and external respectively, but neither of which I will show to be persuasive . Legal philosophy is bound to survive Tamanaha’s objection . This does not necessarily mean, however, that legal philosophers can altogether dismiss an underlying concern he is supposed to have when elaborating these arguments . On the contrary, his concern is of particular importance for them, and therefore ought to be taken seriously . Here I will also provide two possible responses to this concern, which will facilitate ‘re-examining jurisprudence’ within legal philosophy .

* ** 1 2 3

Associate Professor of the Philosophy of Law, Faculty of Law, Kyoto University I delivered an earlier version of this paper at the IVRJ Kyoto Seminar ‘Re-examining Jurisprudence: The Potentiality and Scope of Social Legal Theory,’ 7th June, 2014 . I am grateful to Professor Brian Tamanaha for his insightful comments on it at this seminar . Brian Tamanaha, The Third Pillar of Jurisprudence: Social Legal Theory, William & Mary Law Review 56 (2015), 2235–2277 . See, for example, Brian Tamanaha, A General Jurisprudence of Law and Society, 2001 . Brian Tamanaha, What is ‘General’ Jurisprudence? A Critique of Universalistic Claims by Philosophical Concepts of Law, Transnational Legal Theory 2 (2011), 287–308 . Tamanaha here equates legal philosophy not only with legal positivism, but also with the study of law through the method of conceptual analysis, and, for the sake of argument, I will accept his somehow narrow conception of legal philosophy . It should be noticed, however, that these are not identical, though partially overlapping each other, so that it is possible for us to take a non-positivist approach to law utilizing conceptual analysis, or to conduct a philosophical study of law without resorting to conceptual analysis .

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2. Tamanaha’s inTernal CriTiCism

and iTs

failings

As to his internal criticism, Tamanaha claims that the philosophical approach to law inevitably involves a troubling paradox . Thus he starts by asserting that legal philosophers commonly seek ‘to produce a universally applicable theory of the nature of law,’4 and that they all accept the very existence of this nature, or ‘essential truths about law that apply across the universe, for all times and places and for all legal systems .’5 Nevertheless, as he continues, they usually build it by inquiring into our concept of law, that is, the present-day Western concept of law .6 However, he insists that, given the undeniable fact of conceptual relativity, they must also accept the theories of law based on others’ concepts of law, that is, those of non-Western people, of the past, or both .7 Here is a conundrum of the premises from which he draws a rather dubious conclusion that each legal theory can be ‘necessarily true by its own criteria, yet necessarily false according to the criteria of the others .’8 For this reason, he claims that the philosophical approach to law is theoretically problematic . This criticism seems to miss the point, for, whereas it rests upon his interpretation of the notion of conceptual relativity, most legal philosophers have a different understanding of this notion, which resolves Tamanaha’s paradox . Let me at this juncture first recapitulate Joseph Raz’s argument, since Tamanaha regards this as a paradigmatic case of the philosophical approach to law . Raz assumes that there are some social institutions to whose existence their concept is indispensable . What defines each of these social institutions is the nature of the institution itself, irrespective of how people living under the institution conceive it . For Raz, law is one such institution . Thus he asserts that ‘it is not the case that only a society with a concept of law can be governed by law .’9 Raz also supposes that the way the world really is does not determine the way in which that sort of social institutions are to be classified . Rather, conceptual schemes determine this classification . Given the fact of conceptual relativity, it is natural to postulate that there exist different conceptual schemes, each of which produces its own way of categorization among social institutions . And, it is first and foremost ours10 that enables us to distinguish law from other types of social institutions, as he maintains that ‘[t]alk of the concept of law really means our concept of law .’11 Then, for that distinction, the concept of law designates various properties of its instantiations, the whole set of which comprises the nature of law . In brief, according to Raz, the nature of law universally exists independently of, yet is just contingently identified by, the concept of law . And this understanding leads him to undertake what legal philosophers 4 5 6 7 8 9 10 11

Tamanaha (note 3), 288 . Tamanaha (note 3), 289 . Tamanaha (note 3), 291–292 . Tamanaha (note 3), 302 . Tamanaha (note 3), 303 . Joseph Raz, Can There be a Theory of Law?, in: The Blackwell Guide to the Philosophy of Law and Legal Theory, ed . M . P . Goldman and W . A . Edmundson (Wiley-Blackwell 2004) 335 . Judging from his lecture delivered in Japan in 1994, Raz might deny that I, a Japanese scholar, really share what he regards as “our concept” of law . But this does not affect my contention here . See Joseph Raz, On the Nature of Law (The Kobe Lectures of 1994), ARSP 82 (1996), 1 . Raz (note 9), 331 .

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call the ‘conceptual analysis’ of law,12 whereas the main purpose of his study is to build ‘a theory of law [that] provides an explanation of the nature of law .’13 Since it holds true for law that ‘the explanation of a concept is the explanation of what it is a concept of,’14 he makes use of the inquiry into the concept of law as an infallible means of accessing its nature .15 Tamanaha, in accusing legal philosophers of producing the paradox, assumes that the acceptance of the notion of conceptual relativity forces them to concede that there exist not only our concept of law, but also those of others . However, if legal philosophers take this notion really seriously, that is, if they adhere to the view that how the world is represented is relative to time and place, then it follows that, since we have established the concept of law within our scheme, and others have developed different ways of classification among their social institutions, it cannot easily be asserted that others also have their own concepts of law . To say so, according to the philosophical approach to law, some additional arguments need to be advanced . Indeed, Raz suggests that ‘[w]here they are sufficiently similar to the concept of law, or just historically continuous with it, we naturally talk of differing concepts of law .’16 Thus, only after successfully demonstrating their substantial similarity or historical continuity with ours, we are entitled to talk about different concepts of law that others have . So, that others also have their concepts of law is not the necessary conclusion that legal philosophers are to draw from the premises put forward . It seems to me that this is rather presupposed by Tamanaha himself . And this presupposition may be the one shared by sociological jurists, as Tamanaha states that they usually take for granted the existence of ‘a host of intuitions about what law is (‘our’ intuitions from many perspectives) .’17 At any rate, his criticism is made based on a presupposition brought in from outside and thus totally unwarranted for legal philosophers . Tamanaha may further contend that, even when above arguments are all accepted, the paradox still partially remains within the philosophical approach to law . Certainly, this contention appears to be persuasive, for, since others in the past are deemed to have possessed their own concepts of law when it is aptly shown that these have been modified and thereby successfully replaced by ours, this replacement might cause a sort of inconsistency, that which Tamanaha formulates as ‘nec12 13 14 15

16 17

See, for example, Brian Bix, Joseph Raz and Conceptual Analysis, APA Newsletter on Philosophy and Law, 6 (2007), 1–7 . Raz (note 10), 324 . Emphasis omitted . See also Julie Dickson, Evaluation and Legal Theory (Hart Publishing 2001) 17 & 144 . Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, Legal Theory 4 (1998), 255 . Paula Gaido, The Purpose of Legal Theory: Some Problems with Joseph Raz’s View, Law and Philosophy 30 (2011), 685–698 . See also Scott Shapiro, Legality (Harvard University Press 2011) 405 . Notwithstanding, Raz himself is hesitant about stating that ‘the explanation of a concept’ is completely identical with ‘the explanation of what it is a concept of .’ See Raz (note 9), 324–328 .; Raz (note 14), 255–258 . Raz (note 10), 6 . See also Raz (note 9), 330 . Tamanaha (note 3), 294 . See also Tamanaha (note 2), 166–170 . But there remains some doubt as to whether other sociological jurists really share this sort of presupposition . See, for example, William Twining, General Jurisprudence: Understanding Law from a Global Perspective (Cambridge University Press 2009) 88–121 .

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essarily true by its own criteria, yet necessarily false according to the criteria of the others .’18 This is true, but even such a mutual inconsistency is not problematic for legal philosophers .19 For the inconsistency in this case means that they are concepts about different types of social institution, despite sharing the same label . Remedying Raz’s somewhat confusing description cited above, it seems better to say that they are not so much different concepts of law as merely different concepts simply connected with each other according to their origins . Again, granted the notion of conceptual relativity, it is theoretically impossible for us to treat them at the same time as concepts of law, so that, where there are two mutually inconsistent concepts that share the same label “law,” once we adopt one of them when constructing a legal theory, we must regard the other and its instantiations as not those of law,20 and vice versa . The paradox is thus not a genuine one . Accordingly, Tamanaha’s criticism is invalid as the internal one .21 It should perhaps be emphasized here that, when legal philosophers understand the concept of law in such a restrictive manner, they do not intend to exclude from their scope those social institutions which do not belong to that category . On the contrary, the opposite may hold true . As Scott Shapiro claims, they frequently invoke comparisons with various social arrangements and practices similar to law to highlight some of its features .22 It is therefore quite wrong to assert that to take a philosophical approach to law means neglecting social institutions that sociological jurists tend to deem important . Even though these institutions are not treated as instances of law, they still deserve, and certainly receive, the serious attention of legal philosophy .

18

19

20 21

22

Tamanaha (note 3), 303 . On the replacement of concepts, see Raz (note 9), 330 . On the other hand, there does not seem to occur this kind of inconsistency when we discuss concepts of law of others in foreign cultures, because the requirement of ‘substantial similarity’ necessarily excludes such a possibility . Of course, inconsistency may take various forms depending on the ways of replacement between these two concepts, some of which still allow us to regard both as those of law at the same time . That the one, whether new or old, includes the other as its subcategory is an example . In this paper, I seek to present Keith Culver and Michael Giudice as legal philosophers who attempt to update their approach by taking the recent development as the replacement of this sort, in particular, the situation where the old one is subsumed under the new one . In this case, we are still allowed to treat ‘the other and its instantiations’ as those ‘formerly’ or ‘subsequently’ taken as law . Note that my contention here does not exclude altogether the possibility that Tamanaha’s criticism is valid, for, if successful, it only shows that his criticism is invalid as the internal one . Tamanaha could still claim that the philosophical approach to law is in some sense theoretically inferior to the sociological one and thus to be rejected . However, against the latter approach legal philosophers may in turn present an internal criticism, asking what makes these diverse intuitions as about law . See, for example, John Gardner, Law as a Leap of Faith: Essays on Law in General (Oxford University Press 2012) 297–301 . Shapiro (note 15) 19–20 . See also Gardner (note 21) 295–296 .

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3. Tamanaha’s exTernal CriTiCism

and iTs

failings

As to his external criticism, Tamanaha maintains that the philosophical approach to law tends to have a negative effect on our political practices . Indeed, as he says, legal philosophers all too easily take it for granted that, where there is no social institution of what we conceive and classify as law, no law is eventually found .23 Moreover, the assertion that no law exists in such societies might induce us to be arrogant enough to say: ‘we will be justified in imposing our own (superior) legal system upon them .’24 And, as he correctly reminds us, such an imposition is the historical fact, as demonstrated by the process of Western colonization in the past, and because it is likely to occur even in our time, it is a cause for serious concern .25 For this reason, Tamanaha concludes that the philosophical approach is normatively problematic .26 This criticism seems to me unconvincing, first because it does an injustice to what legal philosophers are engaged in, and second because it eventually leads to something that Tamanaha himself would consider unacceptable . When elaborating their own theories of law, legal philosophers generally have no intention of putting forward normative claims as to law; nor do they seek to furnish arguments to justify or promote certain kinds of human conduct . As Raz maintains, the main purpose of their study is to ‘provide an account of the nature of law .’27 Of course, since the nature of law is exclusively determined by the concept of law, and the concept of law is first and foremost our social construction, legal philosophers’ scrutiny of the nature of law amounts to a reflection on ‘our society’s self-understanding .’28 Even though the concept of law is highly ‘parochial’ in that it is nothing more than ours, the nature of law is necessarily universal by its nature, and legal philosophers’ effort to delineate it might enable us to see and comprehend ‘alien cultures,’ especially others’ conceptual schemes on social institutions .29 Neither of these attempts in any case deviates from the spirit of legal, and in particular methodological positivism .30 Legal philosophers do not deny the value of normative theories about law, which, for instance, explore a more desirable structure of legal institutions, or seek to encourage us to give due respect to others who live their lives according to their own arrangements . At the same time, it is not for those whom Tamanaha calls as legal philosophers to provide such theories . Tamanaha may allude to the well-known fictional construct of the transformation of a society ‘from the pre-legal into the legal world’31 as presented by H . L . A . Hart, one of the great predecessors of contemporary legal philosophers . Tamanaha may argue that, in describing the development of a ‘primitive’ society whose three 23 24 25 26 27 28 29 30 31

Tamanaha (note 3), 307 . Tamanaha (note 3), 306 . Emphasis added . Tamanaha (note 3), 307 . It will have been noted that Tamanaha modestly acknowledges that legal philosophers are not persuaded to abandon their own approaches by this type of criticism . See Tamanaha (note 3), 308 . Raz (note 9), 324 . Raz (note 9), 331 . Emphasis added . Raz (note 9), 337–340 . On the methodological positivism, see, for example, Stephen Perry, Hart’s Methodological Positivism, Legal Theory 4 (1998), 427 . H . L . A . Hart, The Concept of Law, 1961, 91 .

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‘defects’ are to be remedied through the formation of three types of ‘secondary’ rule, Hart represents what Leslie Green calls ‘a Whig history of progress’ or ‘a form of modern triumphalism,’32 which affirm that a society with these special rules is more civilized and thus to be more privileged than others . Such an understanding, though common, is, to my mind, utterly mistaken . A careful reading of Hart, in fact, shows that he is merely trying to explain what causes the development of a particular mode of social organization which we normally categorize as legal system . According to Hart, the emergence of this system is necessitated in a ‘primitive’ society solely by the growth of its size to an extent that makes it difficult to maintain order through informal elements, such as ‘ties of kinship, common sentiments, and belief .’33 It is interesting to note that there is nothing ideological about this viewpoint . Moreover, as John Gardner suggests, Hart might willingly admit that ‘[s]ocieties with legal systems have no legitimate claim to moral superiority over those without .’34 Even today, this is the basic theoretical stance of the philosophical approach to law . If, in his criticism, Tamanaha supposes that what is relevant is not legal philosophers’ intention when they develop their own theories of law, but their judgment that no law exists in certain societies, it is nevertheless a criticism that is hard to accept . First, it is highly doubtful that such judgment determines people’s political attitude in such a way as Tamanaha supposes . Moreover, any attempt, whether philosophical or not, to distinguish law from non-law may lead to the same judgment and is scarcely exempt from criticism, except where such a distinction enables us to maintain that ‘where there is society, there is law’ . Certainly, Tamanaha’s viewpoint in this respect is not exempt from criticism either . He formulates his own conception, based on a basic assumption for sociological jurists mentioned above, namely, that ‘[l]aw is whatever people identify and treat through their social practice as ‘law’ (or droit, recht, etc .) .’35 with a collection of words for “law” in a variety of languages . This ‘conventional’ approach, if possible, cannot exclude the possibility that there may exist societies where we cannot discover any word translatable to “law,”36 and therefore, to compel him to admit that no law exists in these societies . Thus, it might be said that, if we adopted this approach and came to think it justifiable to impose our own legal system upon these societies, Tamanaha would be to blame even though he would deny his role in all this .37

32 33 34 35 36 37

Leslie Green, The Concept of Law Revisited, Michigan Law Review 94 (1996), 1698–1699 . Hart (note 31) 92 . Gardner (note 21) 295 . See also Green (note 32) 1698–1699 . Tamanaha (note 2) 166 . Emphasis omitted . If Tamanaha asserts that there is no such possibility, then he must presuppose that ‘where there is society, there is law,’ which he criticizes as ‘a political belief .’ See Tamanaha (note 2), 202 . Possibly, Tamanaha may not deny this claim because his approach would bring about the lesser evil than the philosophical one, and furthermore, he may argue that for this reason the former is more favorable and thus appropriate . See Tamanaha (note 3), 308 . This argument seems to me unconvincing . First, it does not sit easily with his own approach to law . He recognizes himself as a sociological jurist, and thus his main task as the general description of legal phenomena . If so, in evaluating his theory of law, considerations on its normative desirability really has no role to play . And secondly, it is doubtful if the problem of imposition of our legal system is really solved or at least mitigated through the adoption of his broad conception of law . The very reason for this imposition seems not the absence of law but rather that of sufficiently developed

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It seems better to keep these attempts at theoretical classification separate from any sort of political concern . Although the historical fact that Western people once imposed their legal system upon non-Western societies is truly lamentable, and something which today should be avoided at all cost, such an assertion is totally a matter of political morality, and not a matter of the philosophical study of law . Moreover, there need be no necessary conflict between adopting a philosophical approach to law that focuses exclusively on our concept of law on the one hand, and, on the other, promoting a politically proper attitude to various distinct social institutions others have developed over many years . 4. Two Possible PaThs

for

legal PhilosoPhers

As shown above, Tamanaha’s internal and external criticism of the philosophical type of general jurisprudence are both invalid . Nevertheless, a basic insight behind these arguments seems to remain compelling . The insight is that there is a highly problematic tendency among legal philosophers to formulate their theories of law almost exclusively on the basis of our experience of ‘state law,’ and to miss other forms of law, though usually making careful mention of the possibility of such forms .38 And such an insight is so compelling because, while confronting the decline of the state as a result of globalization, people increasingly begin to downplay the role of their own state law and to recognize the significance of these other forms of law,39 the philosophical study of law have not yet adequately treated the latter, which causes a serious gap between reality and theory . That is why legal philosophers should sincerely accept Tamanaha’s main concern and address it in their own way . We have at least two possible paths through which legal philosophers can respond to this concern . Each path requires them to reconsider some of the basic arguments put forward in their past discussions, though without loss of theoretical identity . The first path leads legal philosophers to cast doubt on the starting point they have commonly fixed for advancing their own theories of law . On this path, they are permitted to proceed in the same way as they have done . Thus, they may anchor their legal theories into our concept of law, and explicate its nature by scrutinizing this concept . What is forbidden is to identify our concept of law exclusively with that of state law . This is consonant with the philosophical approach to law itself, since, as Raz implies, it not only acknowledges but also seems to demand that, once an old concept of law has been modified and thereby successfully replaced by a new one, the latter should be taken as the bedrock of all proper legal theories . Therefore, if we understand the change in people’s attitude mentioned above as showing the modification or the replacement of our old concept of law, this line of thought seems the better to pursue .

38 39

legal system like ours, and thus the imposition is still possible to occur in societies where there exist only less developed, and thus inferior laws . See, for example, Tamanaha (note 2), 151 . For the mapping of diverse forms of law including state law, see Twining (note 17), 70 .

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Keith Culver and Michael Giudice’s ambitious project may be deemed a good example of those who choose this first track .40 Indeed, they concur with Tamanaha in asserting that legal philosophers so far have paid too much attention to ‘state law,’ while aware that this attitude has become obsolete and is therefore no longer appropriate because of the gradual transformation of legal phenomena as may be noted in the rise of various modes of ‘non-state legality,’ namely ‘intra-, trans-, supra- and super-state legality’41 along with ‘state-based legality .’ According to Culver and Giudice, the philosophical approach to law should keep up with this change and attempt to include what has been excluded within its scope . For this purpose, however, they have constructed their own theoretical framework by looking into a ‘renewed’ version of our concept of law, that is, the concept held by ordinary individuals with an adequate consciousness of this contemporary development, and by analyzing the common elements found in diverse instances of ‘legality’ as circumscribed by that concept .42 So, in this sense, their undertaking is still to be regarded, strictly speaking, as a version of the philosophical type of general jurisprudence, as they themselves seem to recognize .43 The second path induces legal philosophers to rethink the nature of legal theory that they have constructed over time . On this path, they are not only permitted to rely on our concept of law as the foundation of their legal theories, but also to associate it with the concept of state law . What is forbidden here is to assume that every legal theory must always engage in the dichotomous categorization of social arrangements as either law or non-law . In other words, it is capable of involving a consideration of ‘degree .’ Accordingly, the philosophical approach to law may still abstract from our experience of the state various essential properties of law, the whole set of which comprises its ‘archetype’ . Nevertheless, it now allows us to treat properly as law an example which possesses some, if not all, of these elements . And this will make it possible for legal philosophers to treat other forms of law within their own theories of law, and thus to respond to the recent concern .44 It may not be so surprising to say that Hart would willingly proceed in this second direction . His most notable work aims at ‘advanc[ing] legal theory by providing an improved analysis of the distinctive structure of a municipal legal system,’ which is planned to culminate in an elucidation of the concept of law .45 To this end, and by way of a most fundamental explanatory device, he offers the notion of ‘the union of primary and secondary rules’, and goes on to claim that this notion 40 41 42 43 44

45

Keith Culver & Michael Giudice, Legality’s Borders: An Essay in General Jurisprudence (Oxford University Press 2010) . Culver & Giudice (note 40), xvii–xxiii . Culver & Giudice (note 40), 79–110 . Culver & Giudice themselves correctly characterize their attempt as a renovation of ‘analytic jurisprudence’ through revising and refining its theoretical instruments . Culver & Giudice (note 40), xiii . This idea is inspired by Nigel Simmonds’ discussion on the nature of law . See Nigel Simmonds, Law as a Moral Idea, 2007, 37–68 . Note that here, as regards renovating the philosophical approach to law and reinterpreting Hart’s project, I am complying solely with his characterization of the concept of law as archetypal, and not with his basic tenet of the ‘aspirational understanding of law .’ This must be allowed since, as Simmonds correctly recognizes, these two theses are mutually separable and thus each of them functions independently . Hart (note 31), 17 .

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perfectly captures ‘the “essence” of law .’46 But if we understand that here Hart intends to articulate it as the sole defining character of law, we may be too quick to judge . For, when highlighting the contrast between law and morality, for example, he spells out four distinguishing qualities of morality whose opposites naturally signify other relevant features of law .47 For Hart, the concept of law is truly archetypal by its very nature, consisting as it does, as we saw above, of two different subsets of constitutive elements and others . Thus international law, which is clearly differentiated from morality in terms of these features, while still partially lacking secondary rules, is, according to Hart, deemed imperfect, yet treated as an instance of law .48 And Hart would, I imagine, extend and apply this idea to other newly emerging forms of law as yet unknown to him . Of course, here I do not mean to provide an exhaustive list of all the possibilities for the current legal philosophers to adopt . Nor am I trying to argue which alternative is preferable, though I myself think the second one is also worth exploring further . My point is that, since such hopeful solutions are still available to us for the purpose of understanding the current post-national constellations, it is not necessary to renounce altogether the philosophical type of general jurisprudence . If this suggestion is found acceptable, and that notwithstanding Tamanaha’s criticism, we may finally conclude that legal philosophy is still possible .

46 47 48

Hart (note 31), 151 . Hart (note 31), 169–176 . Hart (note 31), 208–231 . See also, Leslie Green, Introduction in: H . L . A . Hart, The Concept of Law (3rd ed .) (Oxford University Press 2012) li–lii .

Tomohiko Shiina* (aomori/JPn) soCial legal Theory

and

Progressive PoliTiCs

Robert Samuel Summers, now William G . McRoberts Research Professor Emeritus in Administration of Law at Cornell Law School, has long been one of the leading experts in the fields of contract and legal theory . In his Instrumentalism and American Legal Theory (1982), he writes “[i]n interpreting judicial opinions, we are still told to pay attention not only to what judges say, but also to what they do .”1 Since the Legal Realists strenuously emphasized the crucial importance in legal analysis of grasping ‘law in action,’ not just ‘law in books,’ lawyers have been taught to look beneath and beyond legal text in order to find out what they really need to know . In this commentary, I would like to read beneath and beyond the text of Insights about the Nature of Law from History and a handful of Professor Tamanaha’s other major writings in order to understand his scholarship in depth . 1. rePressive asPeCTs

of

law

In Insights about the Nature of Law from History, Tamanaha sharply attacks legal positivist’s way of theorizing about standard features in identifying the existence of law and legal systems . Carefully examining the form, function and development of a wide array of societies in human history and laws thereof, he concludes: “The quest of legal positivists to identify essential, necessary, universally applicable timeless truths about law… reduce[s] it to a narrow set of unvarying features . What results is inconsistent with law in many past and present social settings and discards much of what law is and does .”2 What makes positivist theory most problematic is that it is descriptively inaccurate in many cases . Indeed, in their scholarly attempts to capture the nature of law, whether consciously or unconsciously, positivists do not take fully into account the various aspects that law has actually shown . Among other things, Tamanaha repeatedly criticizes positivists for not taking due notice of the oppressive role that law has continued to play within a vast majority of human social settings, pointing up the use of law as being aimed at oppressing and exploiting people . [Oppressive aspects] are constant companions in the history of law . Legal theorists discuss openly oppressive legal systems, like those in Nazi Germany, slaveholding America, apartheid South Africa or contemporary authoritarian regimes, as if they are aberrant manifestations of law .3 … A dominant aspect of law throughout history is the service of political and economic power, social stratification, and inequality .4 * 1 2 3 4

Associate professor of law, Aomori Chuo Gakuin University . Robert S . Summers, Instrumentalism and American Legal Theory (Cornell Univeristy Press 1982) 278 (emphasis in original) . Brian Z . Tamanaha, 2014 Kobe Memorial Lecture, Insights about the Nature of Law from History, in this volume, 45 . Tamanaha (note 2), 32 . Tamanaha (note 2), 32 .

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Hart, Raz and Shapiro adhere to modern state law so myopically that the model of law they construct distorts historical realities which laws of various cultures actually produced . Moreover, according to Tamanaha, they are making the serious mistake of not sufficiently recognizing the normative implications that their scholarship is thought to have . 2. law

as a

means

To

whaTever iTs user wanTs

To

aChieve

Law is a coercive instrument for purposive human use in realizing any ends, good or evil . This instrumental analysis of law is central to Tamanaha’s concept of jurisprudence . “Law (of every kind) should be demystified and understood as a tool or instrument, a resource of power and way of doing things…”5 Historically, law gradually began taking on the character of a governmental tool when the social complexity of the state reached a certain point where officials needed to coordinate a wide variety of activity among people by using a malleable and coercive means . And what interests me as a comparatist is a remark in his Law as a Means to an End: Threat to the Rule of Law (2006), namely, that instrumentalism is now a defining feature of contemporary American legal culture .6 In this book and elsewhere, what he forcibly reminds us is that law is for the most part a morally neutral instrument (“empty vessel”), aloof from the rightness or wrongness of the end pursued . After legal institutions were established that enabled state legal officials to create law at will, law diversified to become a multifunctional instrument backed by coercion that could be used for any purpose .7 … A clear-eyed view suggests that legal institutions exert coercive power for all kinds of purposes, to advance all sorts of aims, ranging from moral, to amoral, immoral .8

A major difference between positivism and Tamanaha’s Social Legal Theory is, to my mind, worth noting . What divides the two is the way in which, when constructing their theories about the nature of law, each treats the normative and ethical evaluation of the purpose and outcome of law applied . Legal positivists, in accordance with their tradition, usually exclude moral judgments when describing the essential nature of law (“separation thesis”) . For instance, if the highest court within a certain jurisdiction creates a new rule which has a disastrous effect on people’s lives, the question whether the rule promotes or impairs the welfare of the people is methodologically irrelevant to the identification of the rule as ‘law .’ In other words, what is wrong, according to the positivist, is the result of the use of the law, not the law itself .9 The less a theory is concerned 5 6 7 8 9

Brian Z . Tamanaha, A General Jurisprudence of Law and Society (Oxford University Press 2001) 240 Brian Z . Tamanaha, Law as a Means to an End: Threat to the Rule of Law (Cambridge University Press 2006) 1–2 . Tamanaha (note 2), 35 (emphasis in original) . Tamanaha (note 2), 38 . Leslie Green recently criticized Tamanaha for inadequately separating law from its use in theoretical analysis of legal instrumentalism . According to Green, Tamanaha should have correctly said in Law as a Means to an End that the “selfishness” of a vast majority of Americans, not the instrumental use of law itself, is the real problem which corrodes the rule of law in the United

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with moral estimation, the more sophisticated their scholarship becomes . A good example of this can be seen in the fact that Hart was quite happy to call one of his major writings “an essay in descriptive sociology .”10 On the other hand, it is obvious that Social Legal Theory sees directly, and takes openly into account, the normative evaluation of the goals and results of legal administration in its search for the nature of law . “Colonial law is an unadorned instrument of extractive rule, preserving the colonial state and advancing imperial economic enterprises, while providing scant service to the native public” .11 “A full understanding sees both [socially beneficial and repressive] sides of law .”12 It should be noted that Tamanaha knowingly refuses to separate moral elements from his attempts to theorize about the nature of law . Put another way, it is important to look at his thoughtful focus on justice in utilizing law in order to fully understand his juristic worldview . And this explains why he is rather strident in charging legal philosophers for badly neglecting the historical records of legal oppression in their academic inquiries . 3. Progressive insTrumenTalism “The temporary divorce of Is and Ought”, Karl Llewellyn wrote in 1931, is one of the “points of departure” for the theoretical study of law .13 Repressive and instrumental aspects mentioned above are thought to belong to “Is” or the factual dimension within Tamanaha’s legal discourse . Then we need to discover its “Ought” or aspirational side, which is distilled from a careful examination of a multitude of “Is .” Why does Social Legal Theory repeatedly tell us that law has been abused? How should it to be interpreted? What does it expect us to know and to do? In order to answer these questions, I construe Social Legal Theory as a kind of manifesto which calls upon its reader, lawyers in particular, to be aware of the ethical nature of law . In so doing, I hope to present a brief overview of Tamanaha’s jurisprudential vision in my own terms . In the conclusion of Insights about the Nature of Law from History, Tamanaha conceives the nature of law as “a social construction that has changed in form and function in the course of human history” .14 As regards law in modern times, he characterizes its dominant form as a coercive means of achieving whatever its user desires to achieve . As noted above, this instrumentalist understanding of modern

10 11 12 13 14

States . Leslie Green, Law as a Means, in: The Hart-Fuller Debate in the Twenty-First Century, ed . P . Cane, 2010, 170–1 . I suppose that as a matter of choosing a suitable way of describing the situation, it is not impossible for Tamanaha to accept part of what Green pointed out . However, what the Oxonian analyst wrote about instrumentalism is thought to be true only if it limits its scope within the narrow province of concept in legal philosophy . Apparently Tamanaha is trying to do more in the real world than simply enjoying the scholarly life in a library . H . L . A . Hart, The Concept of Law 2nd ed., (Clarendon Press 1994) vi (emphasis added) . Tamanaha (note 2), 37 . Tamanaha (note 2), 44 . Karl N . Llewellyn, Some Realism about Realism: Responding to Dean Pound, Harvard Law Review 44 (1931), 1222, 1236–7 . Tamanaha (note 2), 34 .

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law has constituted a core part of Tamanaha’s overall jurisprudential outlook ever since he explicitly and extensively described law as a secular tool, probably for the first time in his academic works in A General Jurisprudence of Law and Society (2001) . Law as a Means to an End, another of his groundbreaking writings on legal theory, is generally understood to be a caveat to American lawyers that, unless they cease to overemphasize the instrumental aspect of law, the rule of law in the United States will be seriously undermined; indeed, that it might become so hard for people to foresee how and under what circumstances a certain legal rule is applied that their constitutionally guaranteed liberty will be in danger of losing its practical meaning . Furthermore, as he maintains, judges, being the ultimate gatekeepers of legal systems, should take “consciously rule-bound orientation” in order to sustain the American ideal of the rule of law .15 Here is one question of vital importance . Is Tamanaha here adopting a normative position against legal instrumentalism per se? In other words, is he claiming that we should not see and use law instrumentally for any purposes? The answer is in the negative . What he tries to convey is simply that, if we continue to utilize the law to achieve shared benefits, we ought to know that there is a certain limit to keep carefully . Indeed, Tamanaha argues that legal officials have in mind the antidote to the willful maneuvering of the law for the purpose of our having “a properly functioning instrumental system of law .”16 He claims that as law users, we have to be less instrumental in our attitudes if we want our legal system to help maintain the basic conditions of a liberal society . We must restrain ourselves in utilizing law so that we may reap the liberal harvests that the rule of law has given us for centuries . Thus, the character of law as a tool for achieving human goals is simply undeniable . In that respect, Tamanaha is a genuine legal instrumentalist in the most profound sense of the term . The next question is: if we assume the nature of law in modern times to be a social means, what is the normatively desirable end that law ought to serve? Tamanaha has already answered this question in Law as a Means to an End by asserting that law should realize “the common good .”17 Yet such an answer inevitably leads to another question . What is the common good? As Tamanaha himself lamented, and one critic even pointed out, there is almost no hope of discovering any concrete content of the common social good, at least in the modern age of value-pluralism .18 However, Social Legal Theory implicitly answers the question of the normatively desirable goal that law should serve . In Insights about the Nature of Law from History, Tamanaha seems quite determined to ring a warning bell about the inequality and inequity issues that are found in historical records of political and/or economic relations . In market systems, owners of the means of production (employers) and those with capital utilize legal empowerment to their advantage, dictating the terms of employment relationships with people lacking property .19 … 15 16 17 18 19

Tamanaha (note 6), 241–4 . Tamanaha (note 6), 250 (emphasis added) . Tamanaha (note 6), 219–24 . Tamanaha (note 6), 219–24; Adrian Vermeule, Book Review, Instrumentalisms, Harvard Law Review 120 (2007), 2113, 2120–1 . Tamanaha (note 2), 33 .

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The influence of capital interests on law was plain at the turn of the twentieth century when criminal conspiracy laws and antimonopoly statutes were applied to squelch labor actions, courts issued labor injunctions against strikes and boycotts, and public and private police forces killed and imprisoned strikers . Although less visible today, the influence of capital in securing legal advantages remains in a multitude of ways . Attention to the actual workings of law across time and place reveals that legal systems and inequality are linked, the former helping constitute the latter .20 … [L]aw at the transnational level … also reflects and enforces power . … The most powerful countries shape and support international law they believe serves their interest and defy what does not: to wit, the US water-boarding of prisoners and refusal to join the International Criminal Court .21

In these examples of economic-political inequity, the severe imbalance in wealth/ power distribution not only distorts the idea of the fundamental fairness of law but also deprives weaker parties of the dignity and autonomy that modern liberal political philosophers have long valued highest throughout the history of brutal social turmoil . Law as a means to the common good, within the current context of an economically stratified world, is meant to achieve a just and equitable society where ordered liberty and economic independence are sufficiently guaranteed for the public at large by a careful restraint of the varieties of absolute power . It is not very hard to see that Tahamana, a legal philosopher of progressive bent, envisions an egalitarian world where law plays its ethical role to the fullest . Such a general interpretation is, I surmise, consistently supported by the point Tamanaha has made in other writings . Towards the end of On the Rule of Law: History, Politics, Theory (2004), for example, he quite calmly declares that one of the three essential things that the rule of law ought to provide is legal restraint on the supreme political power of the sovereign .22 Again, he vehemently reproves American law professors for having neglected to take action against the emergent class structure in the United States . The kind of wrath he harbors as a socially-minded jurist might even have inspired him to write his polemic Failing Law Schools (2012) and a couple of more recent texts .23 In the light of all this, we now understand why he cites a good many historical examples of inequality and oppression through the use of law in Insights about the Nature of Law from History, in which he has given us the idea of his legal theory as based upon the broad political vision he cherishes for realizing a just society . Finally, we will consider the essential normative message that Social Legal Theory is thought to deliver to legal scholarship in a contemporary social context . Law is expected to serve as a tool for achieving egalitarian social justice, that is, as a means of empowering the economically and politically underprivileged and of en-

20 21 22 23

Tamanaha (note 2), 33 (citation omitted) . Tamanaha (note 2), 44 . Brian Z . Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press 2004) 129–31 . Brian Z . Tamanaha, Failing Law Schools (University of Chicago Press 2012); Tamanaha, Legal Educators Defending the Status Quo, Washington University Journal of Law and Policy 41 (2013), 131; Tamanaha, The Failure of Crits and Leftist Law Professors to Defend Progressive Causes, Stanford Law and Policy Review 24 (2013), 309 .

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suring that the legal systems and practical social mechanisms are fully utilized by lawyers in the general bid to realize this progressive ideal . Robert Summers once gave the name “Pragmatic Instrumentalism” to the general direction of modern American legal thoughts in his 1982 book cited at the beginning: “It is important to give the legal theory under study an appropriate name… though cumbersome,” he wrote .24 Let me be as bold as Summers by designating Tamanaha’s scholarship “Progressive Instrumentalism”, though cumbersome . Although this labelling might not be entirely accurate, I nevertheless believe that it appropriately describe his essential arguments, and that not least because, as I have shown above, he supposedly sees the normative nature of law in modern times as an instrument to accomplish the progressive political ideal .25 4. Through JaPanese

eyes

Interestingly enough, when viewed from the other side of the Pacific, Tamanaha’s scholarship reminds me of something that symbolizes the very best of American law in the twentieth century, namely, the Warren Court . Why? Tamanaha provides the answer himself by saying that “[t]he noble ambition of the Warren Court was not just to reform the law, but to use the law as a means to reform society for the better .”26 What Social Legal Theory and the Warren Court have in common is that they are ready to use law in a transformative fashion for realizing democratic integration of society . There is no better actual example of the normative lesson Social Legal Theory shows us than the social transformation at which the Warren Court aimed through progressive use of the Constitution of the United States . Not uncommon within the American jurisprudential scene from the latter part of the twentieth century are legal theories which advocate social integration through legal empowerment of minorities and the underprivileged . Critical legal studies, feminist jurisprudence, critical race theory, queer legal theory, and almost all similar subgroups take more or less instrumentalist views on law, as Tamanaha has noted . Certainly, instrumentalism proliferates in present-day legal academy . On the other hand, James Hackney at Northeastern Law School refers curiously to “the death of legal theory” in his Legal Intellectuals in Conversation: Reflections on the

24 25

26

Summers (note 1), 20–2 . It should be mentioned that Tamanaha detaches himself from those who over-politicize the law quite openly in the way that the CLS scholars of the first generation did, even if he sees the nature of law as means to social transformation . Certainly, it is not unreasonable to think that Tamanaha still shares leftist values and some viewpoints on law’s societal function with his Harvard mentors, including Roberto Unger and Morton Horwitz . However, he tries to take a different path so as not to make the same mistake which not only led the CLS to self-disintegration but also made it a total failure as an academic and practical enterprise for realizing progressive goals . In Realistic Socio-Legal Theory: Pragmatism and A Social Theory of Law and A General Jurisprudence of Law and Society, I see his struggle for constructing a holistic legal theory which adequately expresses his egalitarian values through using the conceptual toolkit of modern law and social science . It seems to me that his passion for social change is burning inside, while he cool-headedly engages in his scholarly work on the surface . Tamanaha (note 6), 87 (emphasis in original and citation omitted) .

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Construction of Contemporary American Legal Theory (2012) .27 According to Hackney, younger generations of American jurisprudents are rapidly losing interests in the theoretical and philosophical study of law, though the question whether they are also losing the passion for social reform that the previous generation was so full of cannot yet be readily answerable . How do we see the future of legal theory? My crystal ball is still foggy, so to speak . Social Legal Theory, the third pillar of jurisprudence, must be expected by world audiences to break through this stalemate, reviving the lost mantra for generations of American lawyers: “The life of the law has not been logic: it has been experience .”28

27 28

James R . Hackney, Jr ., Legal Intellectuals in Conversation: Reflections on the Construction of Contemporary American Legal Theory (NYU Press 2012) . Oliver Wendell Holmes, Jr ., The Common Law (ed . by M . D . Howe) (Little, Brown and Company 1963) 5 (emphasis added) .

koSuke naSu* (kyoTo/JPn) doubTing doubTs, resCuing beliefs brian z. Tamanaha

and

refleCTions

on

PhilosoPhy

of

law

In this essay, I would like to make three points about Tamanaha’s writings . First, I will present a general overview of his entire work, pointing out that there lies a notable consistency in his approaches to different topics, which I will call “reflexive skepticism .” Second, I will argue that the foundation of this methodology is closely tied up with his concern for each individual society and its dynamics and variability . And lastly, I will examine how these considerations lead us to reflect on the essence of today’s philosophy of law, and on legal development in modern Japan . 1. wide PersPeCTives, various aChievemenTs Brian Z . Tamanaha is a very active and prolific researcher . In the past twenty years he has published eight highly acclaimed books and more than fifty articles on many aspects of legal practice and legal thought . Summing up his achievements, somewhat simply, I would like to divide them into five different areas . The first area relates to the understanding of the transplantation and development of Western law in non-Western countries . This is very much rooted in his own experience, as he started his academic career after having been Assistant Attorney General of Yap State, Micronesia (and later Legal Counsel of Micronesian Constitutional Convention) .1 In his first book, he describes and investigates his experiences as a legal official in Yap, while reflecting on the methodology of this attempt .2 Later he goes in for a critical examination of the more general background of what is termed “Law and Development” studies and their core concepts, including the most basic assumptions of the dominant legal scholarship .3 The second area follows on the first area, with a more abstract orientation . Here he ventures into theoretical considerations of conceptual apparatuses in order to convey a clearer idea of contemporary globalism and legal pluralism . He argues for * 1 2

3

Associate Professor of Law, Graduate School of Human and Environmental Studies, Kyoto University . Tamanaha, Realistic Socio-Legal Theory: Pragmatism and A Social Theory of Law (Oxford U . P ., 1999) [hereafter, RSLT] xiv; A General Jurisprudence of Law and Society (Oxford University Press, 2001) [hereafter, GJLS] xi . Tamanaha, Understanding Law in Micronesia: An Interpretive Approach to Transplanted Law (E . J . Brill, 1993a) [hereafter, ULM]; Looking at Micronesia for Insights About the Nature of Law and Legal Thinking 41 The American Journal of Comparative Law 9 (1993b); Custom and Constitutionalism in the Federated States of Micronesia, 3 Asian-Pacific Law and Policy Journal 1 (2002) . Tamanaha, Review Article: The Lessons of Law-and-Development Studies, 89 American Journal of International Law 470 (1995); Understanding Legal Pluralism: Past to Present, Local to Global, 30 Sydney Law Review 375 (2008b); The Primacy of Society and the Failures of Law and Development, 44 Cornell International Law Journal 209 (2011a), The Rule of Law and Legal Pluralism in Development, 3 Hague Journal on the Rule of Law 1 (2011b) .

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the necessity of constructing a “general” theory of law, liberated from conventional restrictive assumptions, such as state law as the only source of theorization of law, and the legal system as a necessary constituent of the social order . Instead, he advocates a more empirically-oriented theory of law with emphasis on the interpretive understanding of social practice, originally called “socio-legal positivism”, later called “social legal theory .”4 The third area may also be understood as an extension of the first area while broadening the latter’s perspective . One of the primary causes of the Law and Development movement has been the establishment of the rule of law in developing countries . This concept he analyses from historical, political and theoretical points of view .5 This attempt reveals how the various interpretations of this concept have been formed and developed, and how the resultant ambiguity has not only incurred academic debates but also caused political conflict . In the fourth area he turns his attention to two core aspects of the history of Anglo-American legal thought, namely, legal instrumentalism6 and legal formalism .7 Here he critically reexamines today’s conventional notions of the history of legal thought and, by citing a wide range of writings published by judges and legal scholars, points out those biases and distortions that have negatively affected ordinary legal practices . The fifth area also seems to be a product of a rather special interest, that is, legal education – particularly the training system of the legal professions in the United States today . His latest book, Failing Law Schools,8 severely attacks the present state of the American law school by pointing out how much it is endangered both by over-competition and by the limitless increase of the salaries of professors, and how all this places enormous financial burdens on the students themselves . This cursory look at Tamanaha’s output might give us an impression that it is too diverse to have any consistency . Some scholars have even found several contradictions in his arguments .9 Although each of his books and articles has its own clarity, the whole picture of his scholarship might look somewhat vague .

4

5 6 7 8 9

RSLT; GJLS; Socio-Legal Positivism and a General Jurisprudence, 21 Oxford Journal of Legal Studies 1 (2001); What is ‘General’ Jurisprudence?: A Critique of Universalistic Claims by Philosophical Concepts of Law, 2 Transnational Legal Theory 287 (2011c); The Third Pillar of Jurisprudence: Social Legal Theory, William & Mary Law Review 56 (2015), 2235–2277 . Tamanaha, On The Rule of Law: History, Politics, Theory (Cambridge University Press, 2004) [hereafter, ORL]; Tamanaha 2001b, supra note 3 . Tamanaha, Law as a Means to an End: Threat to the Rule of Law (Cambridge University Press, 2006a) [hereafter, LME]; How an Instrumental View of Law Corrodes the Rule of Law, 56 DePaul Law Review 469 (2007) . Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press, 2010) [hereafter, BFRD]; Understanding Legal Realism, 87 Texas Law Review 731 (2009) . Tamanaha, Failing Law Schools (Chicago University Press, 2012)[hereafter, FLS] . And see also, The Failure of Crits and Leftist Law Professors to Defend Progressive Causes, 24 Stanford Law and Policy Review 309 (2013b) . Compare, for example, his criticism of the “mirror thesis” in GJLS (esp . ch .3) with his advocacy of the tradition of social understandings of law in The Third Pillar of Jurisprudence [supra note 4], or his objection to the rejection of significance of “Law and Development” movement in an earlier article [Tamanaha 1995, supra note 3] with his own flat assertion of “entire failure” of this movement in later article [Tamanaha 2008b, supra note 3] .

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This, however, is not my understanding . By following carefully the paths he has pursued, we can draw together some common threads running through these diverse enterprises . Especially noteworthy in this respect are his approaches to certain problems and the underlying motives of such approaches . 2. Common Threads In my view, there are two threads . One is relatively simple and clear, and, therefore, easy to follow in terms of our general understanding of legal thought; the other thread, somewhat subtler and more intricate, represents a unique and interesting way of thinking on his part . a.

criTicaL view from LegaL PragmaTiSm

As for the first aspect, it is obvious that his most basic concerns and perspectives have been shaped by legal pragmatism which entails both legal realism and critical legal studies (hereafter referred to as CLS) .10 As an heir to legal realism, Tamanaha has always tried to understand law in relation to concrete social contexts . Law cannot function or be understood in isolation from society, for it is not just an autonomous system of rules and regulations but a product of social, political and economic forces and settings, and always operates according to the constellations of these factors . The relation between law and society depends of course on the historical and cultural context . But even when a society is in serious conflict with, or completely indifferent to, its law, the law itself still has to be understood according to its social background . This legal realist or contextualist approach is particularly apparent, for example, in Tamanaha’s assertion of the “mirror thesis”11 and according to his argument of the “connectedness” of society .12 On the other hand, the influence of the CLS is also evident in his criticism of “Law and Development” . For example, he has criticized the self-righteousness of those practitioners and theorists who supported the development of legal institutions of developing countries, and even ruthlessly exposed the biases within the American law school system that discourages poor students from pursuing legal careers . He has also repeatedly cast doubt on the universal desirability of the rule of 10 11 12

RSLT, esp . ch .2 . GJLS, esp . ch .3 . (“Amidst this profusion of theories, however, a common presupposition can be found, that is: law is a mirror of society, which functions to maintain social order .” [GJLS, 3; emphasis original .] “…society is the all-consuming center of gravity of law and development . The term “society” is used here in a capacious sense – encompassing the totality of history, culture, human and material resources, religious and ethnic composition, demographics, knowledge, economic conditions, and politics . No aspect of law or development operates in or can be understood in isolation from these surrounding factors . The qualities, character, and consequences of law are thoroughly and inescapably influenced by the surrounding society . There can be no standard formula for law because every legal context in every society involves a unique constellation of forces and factors . A good law in one location may have ill effects or be dysfunctional elsewhere” [Tamanaha 2011a, supra note 3, 219] .

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law, and sometimes emphasized its adverse effects .13 Such criticism of the optimistic endorsement of contemporary liberal legalism and liberal institutions shows the moderate but unmistakable influence of the Crits .14 Can we, then, simply classify Tamanaha’s standpoint as one of the variants of a leftist skeptic confronting the dominant legal theory and practice as represented by legal realism and CLS? I think not . And here is another aspect of his thought that is not easy to grasp . His arguments often deviate from, and sometimes even seem to go flatly against, the typical claims of the legal realists or the Critical Theorists . For example, although the subjects of his two books about the history of legal thought were aligned with the concerns of legal realists – instrumentalist understanding of law and criticism of formalist approach to legal interpretation – his basic arguments were contrary to those of the legal realists in so far as he condemned legal instrumentalism as the principal cause of the loss of faith in the idea of the “higher law” and decline of the rule of law in the U . S .15 and maintained that the famous realists’ attacks on legal formalism and their advocacy of radical rule-skepticism are mostly illusory, asserting as he did that even the representative “formalist” judges and legal scholars of the late 19th century had explicitly acknowledged the need for a more flexible or purposive interpretation of law .16 Furthermore, he has also openly criticized the CLS’s claims . For example, in “The Primacy of Society and the Failures of Law and Development,” he questions David Trubek’s rule-skepticism, claiming that it has sometimes done fatal damage to some societies . … While it is healthy to expose the exaggerations of legal formalism in Western legal systems where the legal systems are well-entrenched, it is an entirely different matter to export skepticism about legal formalism to societies in which law barely functions . Skeptical views of legal formalism can prevent a legal system from getting off the ground . A legal system cannot work if the very notion that legal officials are rule-bound is perceived to be a fraud . In the absence of any legal restraints, power has its way, and the powerless mass of people in developing countries will have little protection .17

In contrast to the CLS’s comprehensive skepticism about the possibility and desirability of the rule of law, or its assertion of the total failure of liberal legalism, Tamanaha is quite cautious about making such sweeping claims . Rather, he seems to be very chary of generalizing all the nuances of the skeptical views of the legal realists or the Crits, as much as he is of generalizing the optimistic views of the dominant liberal legalists .

13 14 15 16 17

ORL, 124–126 . For example, the Last chapter of ORL (“The Universal Human Good?”) is evidently echoing Morton Horwitz, The Rule of Law: An Unqualified Human Good? 86 The Yale Law Journal 561 (1977) . See, LME, Pt .3; Tamanaha, How an Instrumental View of Law Corrodes the Rule of Law, 56 DePaul L. Rev. 469 (2006b) . See, BFRD, ch .5 . Tamanaha 2011a, supra note 3, 241 .

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refLexive SkePTiciSm

Here lies the second and more elusive aspect of the consistency of his work . It might be said that the common threads in Tamanaha’s various enterprises are expressed in terms of his skepticism and cautiousness toward all kinds of unqualified theoretical extensions of arguments without regard to the difference of contexts . He particularly stands out because he has not held back this critical attitude even toward the most radically skeptical arguments of legal realism or CLS, let alone toward the mainstream liberal legalist claims . Indeed, legal rules themselves do not automatically entail certain conclusions without a judge’s active involvement, and the rule of law or the bill of rights does not always guarantee peace and prosperity (or justice) to every society . Nevertheless, Tamanaha has carefully kept his distance both from extreme rule-skepticism18 and from blanket denials of the rule of law . Although he rightly warns us about some of the defects and harmful effects of the rule of law, he nevertheless willingly acknowledges the universal values inherent therein . … the rule of law carries the ever-present danger of becoming rule by judges and lawyers . Aside from having obvious anti-democratic implications, this raises additional concerns in societies where judges and lawyers are drawn exclusively from the elite, or from some other discrete subgroup . Countries working to develop the rule of law must be cognizant of these and other potential problems .19 When the rule of law is understood to mean that the government is limited by the law, the first cluster of meaning, Thompson is correct that it is a universal human good . The heritage of this idea, which first became firmly established in the Middle Ages, preexists liberalism; it is not inherently tied to liberal societies, or to liberal forms of government . Everyone is better off, no matter where they live and who they are, if government officials operate within a legal framework in both senses described, in the sense of abiding by the law as written, and in the sense that there are limits on law-making power .20

Generally speaking, skepticism is quite prone to lapse into an easy agnosticism, especially when we lose sight of the reason or purpose of our doubt . But it is obvious that it is logically impossible to doubt everything . We can doubt something only when we believe some other things to be self-evident . On the other hand, we also know that it is not always easy to identify what we actually believe, while we can sometimes express our doubts without any difficulty . It might be said that one of the most important roles of skepticism is to sort out our hidden beliefs – making ourselves conscious of what we cannot help believing unconsciously – by doubting all that can be doubted . Accordingly, Tamanaha’s skeptical attitude toward the all-encompassing or destructive skepticism is, in my view, not half-baked skepticism . Rather, it is a radical and elaborate way of finding a belief worth cherishing despite endless doubts; in other words, a kind of reflexive skepticism . This balanced, moderate attitude is typical of Tamanaha’s outlook . It seems to me that, when it comes to the possibilities of a desirable relationship between societies and their laws, he has been, in his cautiously skeptical way, trying to place certain reliable beliefs somewhere in the gap between excessive optimism and exces18 19 20

See, BFRD, ch .10 . ORL, 5 . ORL, 137–138 . See also ORL 119 .

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sive pessimism . Some theory-obsessed legal philosophers may have an unfortunate habit of reducing “beliefs” simply to some abstract principles or political, moral or theoretical standpoints one is committed to . They classify others (or themselves) according to whether or not they advocate liberal legalism, accept indeterminacy of law, approve the transplantation of Western legal system into non-Western countries, belong to certain schools of thought, and so on . True, seen from this viewpoint, Tamanaha’s stance may look indecisive and ambiguous . However, as we have seen thus far, his consistency clearly lies less in what he believes in than in how he finds his beliefs in something . 4. resCued beliefs, underlying moTives At this juncture, let us pose two questions . First, after screening out all dubious convictions and doubtful doubts, what credible beliefs about law does Tamanaha settle for? Second, what are the components and foundations of his skeptical attitude? In other words, how does he actually distinguish acceptable claims from unacceptable ones? Both questions are now worth exploring . As regards the first question, I do not have much to say here . In his writings, Tamanaha has argued for the need for legal development in non-Western countries, not in the way promoted by the “Law and Development” movements but in the less state-centered or Western-centered and more pluralistic and spontaneous way .21 Again, he pursues legal theory not through the analytical or the natural law approach, but through the more empirical – sociological, anthropological or historical – approach,22 advocating as he does the minimum but universal value of the rule of law as a constraint to state power,23 and calling for a “balanced realism” in legal practice, which requires compliance to the demands of legal rules and principles, but also allows room for purposive or consequentialist interpretations .24 I am, however, more concerned with the second question, interested as I am in how Tamanaha rescued his beliefs from a multitude of doubts, rather than what he actually rescued . So let me leave the first question to the other contributors in this volume, who will, I hope, provide us with perceptive analyses of each argument in much more detail . Instead, I will concentrate on the task of understanding how Tamanaha has started and advanced his explorations and how he has expounded them .

21

22 23 24

“… Despite the largely negative tenor of this essay, … it must be emphasized that the message of this essay is not to turn away from legal development . Every society in the world today requires an effective legal system that can, at a minimum, manage and support the activities of governmental and economic systems . The great benefit of the rule of law, furthermore, is in erecting legal restraints on the government – and an effective state legal system can deliver this type of restraint . For these reasons, law must develop and every effort should be made to help legal institutions develop in positive ways, with the awareness that this is a unceasing project”[Tamanaha, 2011a, supra note 3, 244] . RSLT; GJLS; Tamanaha 2011c (supra note 4) ; 2013a (supra note 4); Insights about the Nature of Law from History, in this volume . See above, note 20 and accompanying text . BFRD 186–196 .

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First of all, Tamanaha’s cautious attitude to the ambiguous role of law was already quite apparent in his earliest studies . His real-life experiences in Yap offered him an opportunity to “estrange” himself from the legal theories and practices he had been familiar with, as David Trubek and Marc Galanter have pointed out .25 Through his reflections on these experiences, Tamanaha came to realize that the problem lay not only in Yap society but also in the transplanted legal system itself and the shared assumptions about it among “exporters” of the Western legal system . But as I mentioned above, Tamanaha’s critical reflection did not stop there . While many critics simply dismissed these projects as repressive and illusory liberal legalism, he attempted to examine these criticisms closely in order to seek out the truly valuable aspects of these “repressive and illusory” projects, that is, the rule of law .26 This distinctive approach is pursued even more consciously in his recent works, as is evident from the following passage . … Legal positivists who write about the nature of law emphasize that legal institutions serve social functions . Critical theorists emphasize that law entrenches, normalizes, and enforces hierarchy and inequality within complex societies, assisted by ideological support from cultural, religious and political beliefs . The mainstream and the critical view each emphasize one side of law, downplaying the other . A full understanding sees both sides of law .27

And he seemingly becomes more aware that this approach cannot be reduced to the legal positivist (analytic) approach nor to the natural law approach, but belongs to a tradition which goes back to Montesquieu, was developed by German historical jurisprudence and inherited by sociological jurisprudence or legal realism in the U . S . in the 20th century .28 This “third” approach to the law forms part of the historical and cultural dynamics and variability of law29; finds the source of law in the process of interactions between multiple social forces (rather than wills of the legislator)30; regards society as an organic entity with a complex structure that can hardly be manipulated from outside .31 And it emphasizes the importance of empirical research as an indispensable means of coping with these tasks . Here let me point out that Tamanaha’s reflexive skepticism has always been founded upon his strong concern with the functions of law in its society . It seems to me that his concept of law has been mostly guided by the concern with the various functions of law – both its positive and negative effects – in society, but not with its institutional autonomy or normative justification .32 We cannot identify and evalu25 26 27 28 29 30 31 32

David Trubek and Marc Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States, 1974 Wisconsin Law Review 1062 (1974) . For example, he pointed out the deficit of “strong” legal pluralism, which dismissed the positive role of the state government, while overlooking mutual influences between state law and informal social norms, or between multiple social norms [ULM 11–12] . Tamanaha, “Insights about the Nature of Law from History”, in this volume, 33 . ibid . 17 . See also Tamanaha 2013a . ibid . ibid . ibid . See also his concept of the “connectedness” of law and society [Tamanaha 2011a 222–225, 232] . As will be mentioned below, I think most of the motives or orientations of exploration of the concept of law can be classified into these three basic categories . Depending on which one is emphasized, resultant conceptions of law would make a basic difference .

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ate the functions of certain law or legal systems in a society without knowing the characteristic features and tendencies which constitute the “connectedness” of that society33 – or which, in Isaiah Berlin’s words, weave the “textures of life” of the people .34 While we understand the concept of “law” – such as the rule of the Sovereign or the result of democratic deliberation, the revelation of God’s will or the prescriptions of human reason – its functions are revealed and tested ultimately in the processes of the society . Thus, the best interpretation of Tamanaha’s somewhat puzzling formulation of the concept of law35 would be that society is always the ultimate judge of legality; that is to say, ‘What is law?’ question is to be determined by its functions in social contexts . Tamanaha’s reflexive skepticism might be deeply rooted in these insights . Society’s needs and aspirations, as well as the life of its members, all play a crucial role as a touchstone of the legal development . What the law or the legal system experiences in the social context is always an indispensable element of what the law actually is . These considerations are a prerequisite for Tamanaha’s entire enterprise . As a philosophical pragmatist, he provides this functionalist concept of law not as a conclusion but as a working hypothesis in his explorations . 5. some refleCTions in modern JaPan

on

PhilosoPhy

of

law

and

legal develoPmenT

In conclusion, let me add some brief thoughts about the implications of considerations thus far . What can we learn from Tamanaha’s reflexive skepticism? First, I basically agree with his criticism of the narrow-mindedness of contemporary trends of the philosophy of law . As far as I know, it is true to some degree that, while recent studies of legal theory tend to stress the law’s institutional autonomy or its normative justification, they have not paid due attention to its functions . As Tamanaha has recently pointed out,36 the latter approach seems to be avoided even as a hindrance to the pursuit of universally true conceptions of the legal system . It may be because identifying the functions of law and its social contexts inevitably requires certain empirical studies, which deal mainly with the contingent and particular elements of each society . However, a lack of concern with the functions of law – ignorance of or indifference to how legal rules and principles are actually formed and reformed, how they operate, how they are respected in the particular social process – might impede legal philosophers from realizing where and how the materials of legal theory should be sought . On the other hand, the functionalist approach may have its own shortcomings . If we put too much emphasis on the functions of law, two problems may arise immediately that would directly entail two difficult points concerning the studies of practices of legal development . One is the problem of conservatism . Since society is 33 34 35 36

Tamanaha, 2011a, 232 . Isaiah Berlin, The Sense of Reality, in: Berlin, The Sense of Reality: Studies in Ideas and Their History (Chatto & Windus, 1996) 26, 38 . “Law is whatever people identify and treat through their social practices as ‘law’ (or droit, recht, etc .)” GJLS 166 [emphasis omitted] . Tamanaha 2011c 289–290; 2013a .

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so complex (or “connected”), we may find it harder to take an active part in the development process because of a lack of reliable knowledge, and therefore may well be hesitant to adopt reformist policies . The second is the problem of interventionism (and limitless legal instrumentalism), which is quite the opposite of conservatism . While we confidently assume that we can comprehend the needs and desires of the society and design the (legal) means to fulfil them, the border between the promotion (or assistance) of development and the enforcement (or imposition) of development will easily be blurred and lost . Although Tamanaha has strongly criticized the self-righteous interventionism of the “Law and Development” studies and practices, it seems to me that he still does not find a convincing way of resolving these two problems .37 Furthermore, when focusing on particular circumstances in Japan, things would become more complicated . Modern Japanese society has lived through two (or three?) major legal transplantations in the last 120 years . Compared with other societies that have had similar experiences, it seems that these projects were outstandingly successful in Japan in that they scarcely provoked serious social confrontations or effective objections to them . Even during the country’s greatest crises of nationalism and totalitarianism, the general framework of a transplanted legal system remained and functioned for the most part; and then the defeat in 1945 provided yet another opportunity to adopt the modern Western legal system on a large scale . Owing to these comparatively fortunate successes, today we seem to have dispensed with radical doubt about the possibility or desirability of legal transplantation projects in Japan . But were they really fortunate successes? Yes, they were in one respect, although it is undeniable that they involved certain crucial sacrifices . The Japanese Sinologist Yoshimi Takeuchi once compared the modernization process of Japan with that of China, pointing out that, while the former had proceeded very smoothly and achieved its goal with success, the latter had faced much political or cultural resistance and conflict, resulting in heavy sacrifices . From the functionalist point of view, modernization projects succeeded in Japan but failed in China . But Takeuchi thought quite differently . According to his diagnosis, the great “success” of Japanese society was the result of its blind earnestness and meek obedience in pursuing its given (or forced) objectives without questioning them . On the other hand, the hardships of Chinese society were caused mainly by its profound discomfort with, and doubts about, the values and institutions that were being imported into China from the West, as well as by the stubborn and repressive Chinese traditional customs at that time .38 Through this comparison, Takeuchi argued that the excellence of Japanese society is a product of their sheer servility, blindness to their own submissiveness and loss of intellectual or moral independence . Indeed, he tacitly questioned the shallowness and fragility of the modernity of Japanese society . 37

38

Also note the ambiguity of the idea of “development” . It sometimes means just growing – that is, naturally and spontaneously thriving – and becoming more mature, advanced, or elaborate, but sometimes mean causing to grow – that is, forcibly or encouragingly promoting maturity or advancement . Takeuchi Yoshimi, What Is Modernity? (The Case of Japan and China), in Takeuchi, What Is Modernity?: Writings of Takeuchi Yoshimi, edited and translated by Richard F . Calichman (Columbia University Press, 2005) .

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According to Takeuchi, the well-functioning legal system in Japan may still not indicate its endorsement of, or reliance on, the law . Indeed, Japanese society, he thought, might be simply insensitive or indifferent to the significance of transplanted laws, because, unlike Chinese society, its “social context” does not play much of a role as touchstone for the function of law . Thus, when Japanese people think about the functions of their law, they unconsciously see only the effectiveness of government power, not the law’s inherent force; or, more exactly, they do not distinguish between those two . So in this case, Tamanaha’s core assumption or working hypothesis would not quite apply to Japanese society because the Japanese define the law as “whatever the government identifies and treats as ‘law’ .” I am, nevertheless, inclined to use the approach that Tamanaha employed . As far as I understand, his reflexive skepticism will contribute to one’s bid to bring about what actually should be (or should have been) accepted and relied on in the transplanted legal system of Japan . But to do this, we will have to learn more from our experiences of failure, and the defiant, recalcitrant and stubborn part of our society . An aphorism from ancient China says, “To trust in what is trustworthy is trustworthiness . To doubt what is doubtful is also trustworthiness .”39 Takeuchi loved to cite the latter phrase, rephrasing it as: “To doubt your own doubt is another route toward your conviction .” Thus, as long as we doubt our success in legal development in Japanese society – and our doubts about our own achievements as well – we can reach the real significance of the legal development or the rule of law . In this sense, the experience of Japanese society, which is one of the most “developed” societies in the non-Western world, offers an irreplaceable and widely applicable example for development studies .

39

Xunzi: The Complete Text, translated with an introduction by Eric L . Hutton (Princeton University Press 2014) 42–43 .

Brian Z. Tamanaha The orienTaTion

of

soCial legal Theory

I am honored that a terrific group of Japanese professors would critically engage with my Kobe Lecture and my scholarship more generally . Reading these challenging essays forced me to contemplate a basic question: What ties together my jurisprudential work? The short answer is my goal is to understand law – how law works, what law does, how law is constructed, what government officials do with law, what people do with law, how people see law, and a host of other aspects of law . Legal theory, my scholarly endeavor, involves conceptual frameworks for thinking about law . Simply stated, I have been working on constructing a theoretical approach that captures and conveys what law is in the world . What law is in the world is a crucial phrase with several implications . To get a sense of this one must look around at legal phenomena in a grounded and realistic fashion . Taking a lay person’s point of view, stripped of theory, law immediately appears in all sorts of manifestations and contexts: police, prosecutors, judges, lawyers, legislators, crimes, mortgages, wills, divorces, business contracts, speed limits, lawsuits, bankruptcies, statutes and codes, judicial decisions, zoning laws, safety regulations, etc . This is the familiar stuff of state law in modern life, but it is too narrow if one wishes to understand law in the world . For many people in many societies around the world, not only state law, but also religious law, or tribal or customary law, with their own tribunals and norms, govern many aspects of daily life . On top of these national and local forms of law, there are international treaties, international courts and tribunals of various sorts, human rights, trade laws, transnational commercial laws, and more . Already a lot to consider, this is still too narrow, because to fully understand law in the world requires that we also look to the past, to see what law has been in other places and times and to observe what developments led to the various manifestations of law today . Mainstream jurisprudential theories offer limited help in understanding law in the world . The old contest between natural law and legal positivism, and internecine debates between competing schools of legal positivism, holds center stage in jurisprudence . Natural law theory aims to articulate and defend a set of universally binding moral-cum-legal principles of human flourishing .1 Their emphasis on objective moral principles, while important, is a narrow slice that leaves out a great deal of law in the world . Legal positivist philosophers likewise seek a universally true theory of law . As Joseph Raz put it: “Its theses, if true, apply universally, that is, they speak of all law, of all legal systems; of those that exist, or that will exist, and even of those that can exist though they never will .”2 Raz acknowledges the quest to identify universal truths about law requires that a great deal be excluded . “Since a legal theory must be true of all legal systems,” he writes, “the identifying features by which it characterizes them must of necessity be very general and abstract . It must disregard those functions which some legal systems fulfill in some societies because 1 2

See John Finnis, Natural Law and Natural Rights (Oxford University Press 1980) 23–25 . Joseph Raz, Between Authority and Interpretation (Oxford University Press 2009) 91–92 .

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of the special social, economic, or cultural conditions of those societies .”3 Theorists who aspire to construct theories about law in the world cannot focus on an abstract level and cannot disregard social, economic, and cultural conditions of societies . Other mainstream jurisprudential approaches likewise appear too narrowly focused, and most emerged in connection with domestic concerns initially among Anglo-American legal theorists, which later spread . Legal realism, law and economics, critical legal theory, legal pragmatism, critical feminism, and critical race theory are all partial outlooks on law with particular concerns .4 There are two jurisprudential approaches oriented to understanding law in the world . Sociological jurisprudence is built on the insight that law is a complex of institutions with social functions and consequences that operate subject to surrounding social influences . Historical jurisprudence adopts the core same position, which it extends across a temporal dimension, emphasizing that law and society evolve together over time . By situating law within society, both theoretical approaches take a holistic perspective on law as interconnected with social, economic, political, technological, and cultural factors . To understand law, these approaches insist, one must apply an empirical lens to observe law in social-historical context . Despite appearing to provide suitable theoretical resources for my scholarly agenda, sociological and historical jurisprudence have been virtually erased from jurisprudence . A leading, exhaustive jurisprudence text declares “historical jurisprudence has largely disappeared,” and mentions “sociological jurisprudence” only once in passing without discussion .5 These theoretical approaches have been largely ignored by jurisprudents for decades and left undeveloped . Apparently lacking a theoretical home, I tried to construct a theoretical framework for law out of the material at hand . At the outset I drew from H . L . A . Hart’s masterpiece, The Concept of Law . But I had to modify his theory to suit my purposes . Hart constructed his theory of law on state law, whereas my goal was to develop an approach that also includes other forms of law . Furthermore, his project was analytical, while I wished to inform analysis with studies of how law actually works (mainly from legal sociology, legal anthropology, and legal history) . And Hart’s work centered squarely on law, while I preferred to locate law within society . Initially, I labeled my approach “socio-legal positivism” and used the term “general jurisprudence” to mark that my theoretical perspective was compatible with the legal positivist tradition,6 albeit from a different angle with a wholly different set of concerns . As my understanding deepened, however, I came to realize that the conventional narrative of the supposed death of historical and sociological jurisprudence was incorrect . Their core insights – which trace backward to Montesquieu and Scottish Enlightenment philosophers, and forward through legal realism – have carried on to the present in various guises and provide rich intellectual resources for understanding law in the world . I label this social legal theory, a branch of jurisprudence 3 4 5 6

Joseph Raz, The Authority of Law, 2nd ed. (Oxford University Press 2009) 104–05 . For an informative overview of jurisprudential approaches, see Brian Bix, Jurisprudence: Theory and Context, 6th ed . (Carolina Academic Press 2012) . Id . 276 . See Brian Z . Tamanaha, A General Jurisprudence of Law and Society (Oxford University Press 2001) .

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The Orientation of Social Legal Theory

that contains many different versions .7 My theoretical work is an effort to construct a version of social legal theory that focuses on the dynamic interaction of law within society, influenced by the past while continuously moving through the present, never standing still . Stripped to the basics, I see state law as a collection of legal institutions attached to the polity, buffeted and infused by social influences, engaged in a vast array of activities, ultimately backed by coercive power . Other forms of law besides state law are also present in many social arenas, which are too varied to describe in a sentence . All forms of law evolve over time in connection with society, some indigenous to society, others introduced from the outside, some spanning different societies . These legal forms interact with other bodies of normative ordering and other organizations, which frequently exert significant influence on social behavior as well as on legal institutions . Applying this lens, my jurisprudential work explores a variety of issues, including judging, legal realism versus legal formalism, legal instrumentalism, law and development, legal transplants, the rule of law, and others topics . These general observations provide a backdrop for my responses to the Kobe Lecture commentaries . My response is organized in terms of major recurring themes . I regret that owing to space limits my comments are brief and there is much I leave out . I urge scholars to read the essays on their own terms . The limiTaTions

of

analyTiCal Theories

of

law

Several commentators take up my criticisms of H . L . A . Hart’s theory of law . In my opinion, The Concept of Law is the outstanding jurisprudence text of the twentieth century . Among many insights in the book, Hart’s account of law as a system of primary rules of obligation (generally followed by the populace) and secondary rules (accepted by legal officials) to recognize, change, and apply primary rules is a brilliant reduction of the elements of state law . Though I set out my own framework by showing the limitations of Hart’s theory of law, I have never doubted its value . One of my main concerns, as noted above, is Hart explicitly built his theory of law on the state law model, which excludes other forms of law that do not share the same features, like customary law and international law . Against my critique, Professor Kiyoshi Hasegawa argues Hart’s theory of law can accommodate my concerns . To show that Hart takes account of tribal societies, he points to an endnote in which Hart “mentions Malinowski, Diamond, Llewellyn and Hoebel, and Evans-Prichard .”8 For further support, Professor Hasegawa quotes a passage from Jeremy Waldron citing the same endnotes to assert Hart was not dogmatic about distinguishing law from not-law .9 I wholly agree that Hart was not dogmatic, and he acknowledged there are different ways to conceptualize law (exhibiting greater flexibility than many contemporary analytical jurisprudents) . Yet the fact that Professor Hasegawa must point to an 7 8 9

See Brian Z Tamanaha, “The Third Pillar of Jurisprudence,” 56 William & Mary Law Review 2235 (2015) . Kiyoshi Hasegawa, Brian Tamanaha’s Conception of Law and His Critiques of H . L . A . Hart’s Theory of Law, in this volume, 63–70 . Id . 65 .

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endnote to make his case backs my point: for Hart, customary law was a footnote, not a matter of direct attention . Furthermore, in these same endnotes Hart labels customary systems “pre-legal,”10 according it less than fully legal status . Others have followed his lead . My argument is that customary law – which comes in different versions prior to the state, outside state law, and incorporated within state law – constitutes a form of law in many parts of the world past and present . By building his theory exclusively on state law, Hart relegated these forms of law to the margins, dismissing them as genuine legal phenomena . In a recent publication, Jeremy Waldron sharply criticizes Hart for his treatment of international law (which Hart lumped with customary law as “pre-legal”) . Waldron writes: The agenda set out at the beginning of The Concept of Law was ‘to advance legal theory by providing an improved analysis of the distinctive structure of a municipal legal system .’ Analysis of issues involving international law was always going to be a distraction from this task, and Hart did not venture in the chapter to consider the possibility that we would regard international law as a paradigm of law along with the law of a familiar municipal system; he was unwilling to raise that possibility and unwilling to consider how different our philosophical analysis would have to be if both of these were treated as paradigms instead of only one . So international law was treated from the outset as a borderline case .11

That is my objection as well, though I apply it beyond international law to include customary law, religious law, and other forms of law . In response to my additional argument that Hart’s analytical aims precluded him from incorporating empirical insights about law and society, Professor Hasegawa cites several passages from Max Weber which appear to match Hart on several points, asserting “Hart seems to have been deeply influenced by Weber .”12 But once again his evidence supports my point . As Hasegawa admits, Hart himself denied he was influenced by Weber,13 so any connections with sociological accounts of law must be constructed by others theorists . That is what I am trying to do – enrich and go beyond Hart’s work by constructing a theory of law with greater sociological and historical awareness . Professor Ryuichi Nakayama reminds us Hart characterized his book as “an essay in descriptive sociology,” and Nakayama asserts the book “has unfulfilled potential” in this respect .14 I agree with Professor Nakayama . My criticisms of Hart do not dismiss his theory of law, but try to help fulfill its potential by accounting for forms of law he left out and by making his dual rule scheme more empirically informed . Professor Itaru Shimazu presents an example of the insights one can uncover by applying Hart’s framework with sensitivity to other contexts . After the Meiji Resto10 11 12 13 14

See H . L . A . Hart, The Concept of Law, Third Edition, (Oxford University Press 2014 [1961]) 292 n . 94 . See Jeremy Waldron, International Law: “A Relatively Small and Unimportant Part of Jurisprudence?” 210, available at http://papers .ssrn .com/sol3/papers .cfm?abstract_id=2326758&download=yes Kiyoshi Hasegawa, Brian Tamanaha’s Conception of Law and His Critiques of H . L . A . Hart’s Theory of Law, in this volume 68 . Id . 67 . Ryuichi Nakayama, On Legal Instrumentalism After Fukushima: A Comment on Professor Tamanaha’s Lecture, 3–4, in this volume 57–62 .

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ration of 1868, nearly the entire corpus of laws (constitutional, civil, commerce, criminal, and procedural) “were newly drafted and legislated according to Western models .”15 “Predictably there was a yawning gap between law and prevailing social norms,” Shimazu points out . “While elites were studying Western i . e . positive, law in college classrooms, ordinary people’s lives remained for a long time under the traditional regime .”16 Though situations like this have occurred many times around the world, Hart did not consider them when articulating his theory of law . Had he paid closer attention to this social reality, Hart would have modified his assertion that the populace must generally follow the primary rules for a legal system to exist . It is correct that they must abide by some set of primary rules (or social chaos would prevail), but not necessarily the primary rules set forth and enforced by the legal system . Again, I emphasize, Hart’s analysis of state law is an enduring contribution to jurisprudence . My argument is not that Hart – or other analytical jurisprudents – must adopt a social legal theory perspective . These are contrasting theoretical approaches with distinct objectives and orientations, both of which have insights to offer .17 However, these approaches overlap on crucial points, particularly on conceptualizing law, and on these points we must directly engage . One objection I have pressed is that legal philosophers cannot issue universal truth claims derived from their views of state law, which has the effect of denying legal status to other forms of law (as Waldron also suggests in the passage above) . Joseph Raz states: While the general theory of law is universal, it is also parochial .”18 What makes it parochial “is that the concept of law is itself a product of a specific culture .”19 Against this, I have argued that a parochial concept of law produced within a particular culture cannot be the basis for a universally true theory of law for all times and places . A concept of law derived from one culture can be applied to examine other cultures, to be sure, but it does not provide a standard of truth that dictates what law is outside its own context . In response to my criticisms of universal truth claims, Professor Keisuke Kondo recapitulates Raz’s argument .20 The issues are complicated and cannot be covered in full here .21 Instead, I will expose a paradox entailed by Raz’s position that Professor Kondo does not address . Raz acknowledges that “our” concept of law changes over time, and that other times and places have other concepts of law . To simplify matters, let us say Raz’s theory of law consists of elements A, B, and C . Let us assume, moreover, that our prevailing concept of law evolves over the course of 1000 years to gain a new essential feature, as Raz allows may occur . (To offer a concrete possibility: assume that, unlike today, in year 3000 the prevailing concept sees law 15 16 17 18 19 20 21

Itaru Shimazu, From the Viewpoint of Private Law, in this volume 49–56 . Id . See Tamanaha, Third Pillar of Jurisprudence, supra 105–113 . Raz, Between Authority and Interpretation, 92 . Id . 95 . Keisuke Kondo, Rescuing Legal Philosophy, in this volume 106–107 . For a fuller explanation, see Brian Z Tamanaha, “What is ‘General Jurisprudence’? A Critique of Universalistic Claims by Philosophical Concepts of Law,” 2 Transnational Legal Theory 287 (2012); Brian Z Tamanaha, Necessary and Universal Truths About Law?, Ratio Juris (forthcoming)

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as inherently morally right (label this feature D)) . Now imagine a legal philosopher a millennium hence, whom we call Raz 3000 . Like Raz of today, Raz 3000 devises a general theory of law using the then prevailing cultural concept of law, correctly identifying law’s essential features . Raz today says the essential features of law are A, B, and C; whereas, Raz 3000 says the essential features of law are A, B, C, and D . Although both theories are necessarily and universally true (per Raz’s argument), when evaluated by the criteria of the other, each theory provides an incorrect account of the nature of law . Each theory is true (on its own terms), but also false (on the other’s terms) . These nonsensical results follow from the logic of Raz’s analysis . Ignoring this scenario, Professor Kondo simply declares there is no paradox . Raz’s recent work indicates that lately he has begun to reconsider his own position . In “Why the State?”, Raz is “critical of jurisprudential theories that focus more or less exclusively on the state .”22 Raz urges legal philosophers to break out of this narrow lens to examine “other kinds of law,” including “international law, or the law of organizations like the European Union, but also Canon Law, Sharia Law, Scottish Law, the law of native nations,…”23 This is the very critique I and other social legal theorists have directed against Raz and analytical jurisprudents generally for the past two decades .24 His recent turnaround raises a host of questions about the soundness of his prior universal truth claims, which never seriously considered the existence of other forms of law . When legal theorists set aside the assumption that there is one universally true theory of law, a new range of issues and questions arise . Professor Ko Hasegawa’s nuanced exploratory essay raises a number of issues implicated by the multiplicity of law .25 Among other issues, he asks whether law is seen through multiple social scientific angles that allow us to grasp divergent features, or whether there are multiple forms of law each with its own essential elements, or whether there is some integral view of law beneath angles and multiplicity, or whether there are multiple forms of law none of which have necessary features . He goes on to elaborate that law can be understood in terms of different combinations of ingredients . While his questions are directed at me, alas, I do not have all the answers . Professor Hasegawa’s thoughtful essay illustrates how recognizing the multiplicity of law opens a vista of previously unconsidered issues for legal theorists to contemplate .

22 23 24

25

Joseph Raz, “Why the State?” (2014) 1 available at http://papers .ssrn .com/sol3/papers .cfm?abstract_id=2339522 Raz, “Why the State?” supra 4 . See Brian Z . Tamanaha, A General Jurisprudence of Law and Society (Oxford University Press 2001) 138–48, 151 . See generally William Twining, “A Post-Westphalian Conception of Law” 37 Law & Society Review 199 (2003); William Twining, General Jurisprudence: Understanding Law from a Global Perspective (Cambridge University Press 2009) . Ko Hasegawa, “How to Deal with the Multiplicity of Law: Comments on Professor Brian Tamanaha’s Theoretical Challenge to Legal Positivism .” In this volume 97–104 .

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legal insTrumenTalism I have written extensively about the spread of a purely instrumental attitude toward law in the US legal tradition .26 For many centuries in the Western legal tradition, law was thought to consist of a combination of natural principles of reason and longstanding customs and shared moral views of the community . In the course of the nineteenth century, jurists came to assert law is an instrument to serve the social good . In the early twentieth century, the instrumental view of law spread and took hold in the US legal culture . At the same time, however, people increasingly lost faith that a common good exists, or that it could be identified and agreed upon . The result, I have argued, is that battles among contesting groups now occur across legal arenas (executive, legislative, and judicial) to use law to pursue interests . These contests are leading to excesses that threaten the functionality and legitimacy of law in multiple ways . The more general theoretical implication of this work was to show that social influences and ideas thoroughly penetrate law, including affecting legal officials in their legal actions . Professor Michihiro Kaino lays out my argument and critically comments on my suggestion that legal instrumentalism in the judicial arena can be controlled if judges remain consciously committed to issuing rule bound decisions . This is a simple and passive proposal, he observes, inadequate to deal with the magnitude of the problems I identify .27 His is right . I confess, I have no solutions to the potential problems I identified . At the very least, I believe, we need a renewed commitment to the common good and respect for the integrity of law . But I do not know how to bring these about . Nor am I fully confident in the soundness of my worrisome diagnosis that the trajectory we are on, if continued, portends the deterioration of the rule of law . Our society and law have undergone continuous battles for decades and so far our legal institutions are holding up . While my exploration of legal instrumentalism was limited to the US legal culture, Professor Nakayama offers a fascinating snapshot of instrumental attitudes toward law in Japan .28 He points out that in East Asian political cultures the term “law” does not carry connotations of justice; instead, law represents an instrument by which the elite govern the people . All along this has been a purely instrumental view of law, which has implications for the rule of law in these societies . I know nothing about Japanese legal culture so I cannot respond substantively . However, his analysis nicely exemplifies the interconnectedness of law within society, showing once again that we cannot understand law without close attention to social attitudes toward law .

26 27 28

See Brian Z Tamanaha, Law as a Means to an End: Threat to the Rule of Law (Cambridge University Press 2006) . Michiro Kaino, “Brian Tamanaha’s Historical Study and His Concept of Balanced Realism” in this volume 71–79 . Nakayama, “On Legal Instrumentalism After Fukushima,” in this volume 60–61 .

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suCCessful legal develoPmenT Jurisprudence scholars rarely discuss my work on law and development, and law and development scholars seldom discuss my legal theory . These are separate fields of academic specialization populated by different groups of scholars . Yet, I see my writings on law and development as an integral part of and continuous with my jurisprudence . My work in both is shaped by the same idea that law is deeply affected by surrounding social factors . My theoretical exegesis On the Rule of Law is simultaneously a work of jurisprudence and law and development .29 My jurisprudential objective, as I stated, is to construct a theoretical approach to understanding law in the world – and large swaths of the world have immensely complex legal situations that are far different from the Global North where state law is pervasive . Professor Nasu recognizes the deep connections between my work in these fields . He observes, “[Tamanaha’s] real-life experiences in Yap offered him an opportunity to ‘estrange himself ’ from the legal theories and practices he had been familiar with .”30 My experience as a practicing lawyer, he notes, allowed me obtain distance from law and development scholars – most of whom worked as advisors or researchers on development projects, not as lawyers in developing countries for lengthy periods – as well as obtain distance from standard assumptions built into mainstream jurisprudence, which ignores these types of situations . One of my early works on law and development, “The Lessons of Law and Development Studies” (1995), was critical of scholarly work that declared law and development a complete failure . I pointed out that much of the failure observed had more to do with their own assumptions and agenda, which overlooked real (albeit slow) progress being made in developing legal institutions . A subsequent essay, “The Primacy of Society and the Failures of Law and Development” (2011), again presented a series of criticisms of law and development . A number of readers detected an apparent change in views about law and development – the former optimistic, the latter pessimistic . That is not how I see it . My underlying target and position remained the same throughout: law and development projects run by outsiders based on their own agenda often do not work as planned . In both pieces I argued legal development continues at a “retail” level through the slow process of local actors trying to build working institutions that meet people’s needs . The main differences are the second piece focused more on how legal development projects are structured, and used the notion of “the interconnectedness of society” to explain why projects run by outsiders – blind to internal dynamics – often founder . Professor Hiroshi Matsuo has an extraordinary amount of experience in law and development projects and is deeply learned . The basic thrust of his comments is that my critical account is too one-sided . Well run legal assistance projects that invest a great deal of time and resources in a recipient country, he points out, can learn enough to navigate problems caused by the interconnectedness of society .31 Professor Matsuo is correct . When done with local partners and with close attention to 29 30 31

Brian Z Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press 2004) . Kosuke Nasu, Doubting Doubts, Rescuing Beliefs: Brian Z Tamanaha and Reflections on Philosophy of Law, in this volume 123–132 . See Hiroshi Matsuo, The Possibility of Legal Development through Legal Assistance and the Future of Law and Development, in this volume 81–88 .

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local needs and circumstances, legal development efforts can be successful . My critical analysis in the second article focused too much on why projects often fail and not enough on examples of properly designed projects . My reason for focusing on these failures is that many development projects operate on the faulty model I criticized .32 My only disagreement with Professor Matsuo is his assertion that plural legal situations must evolve to become unified systems of law under the state law model . He writes: “In legal development, the rule of law should also be conceived as something to be established in the dynamic process, in stages from (i) a shared willingness among people to comply with existing institutions; (ii) the formalization of legal rules; (iii) the enforcement mechanism by a centralized authority; and (iv) the examination of the substantial content of legal rules which should conform to the basic values of the legal system .”33 This is the idealized unified image of law, but I am skeptical . In the many situations with deeply entrenched legal pluralism and perennially weak state legal institutions, the prospects for unification of law are remote . In some societies today legal unification under the state is actually breaking apart,34 with legal authority going upward to transnational legal bodies or downward to semi-autonomous local legal bodies, or privatized to non-governmental bodies . Furthermore, though legal pluralism presents special difficulties, working accommodations can be made . It is not clear to me that unification is necessary or inevitably superior, particularly in societies marked by ethnic or religious heterogeneity . Professor Takehiro Ohya’s assertion that externally imposed development can be successful gives me great pause . Japanese colonization of neighboring countries, he claims, ultimately helped them become among the best performing economies in the world today . “Japan tried to ‘modernize’ the colonies, as can be seen in Taiwan and Korea, according to its own idea, which resulted in devastation of traditional ways of life and community . As the traditional ways did not necessarily fit the modern principles of justice, their destruction may have had a positive effect on the countries’ own economic development .”35 This reasoning flirts with the post hoc ergo propter hoc logical fallacy: Japan devastated their traditional ways; forty years after achieving independence their economies were booming; therefore, Japan’s invasion contributed to their booming economies . I’m not persuaded . It is more plausible that what explains the success of the Asian Tigers is a combination of post-war stable political-economic conditions and cultural orientations toward work, education, and savings .36 For all we know, these countries might have achieved economic success more quickly and less painfully had Japan not invaded them to begin with . Fortunately, forcible colonization of another country – even purportedly for its own 32 33 34 35 36

A recent collection discussing the failures is David Marshall, ed ., The International Rule of Law Movement: A Crisis of Legitimacy and the Way Forward (Human Rights Program at Harvard Law School 2014) . Matsuo, The Possibility of Legal Development through Legal Assistance and the Future of Law and Development, supra . This is occurring in the European Union . Takehiro Ohya, Legal Assistance and Legal Development: A View From Japan, in this volume 89–95 . See Tamanaha, The Primacy of Society and the Failures of Law and Development, supra 212– 213, 229–230 .

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good – is no longer acceptable . The less-than-successful US efforts to build the state legal system following its invasion of Afghanistan is the latest example showing that legal development by outsiders often does not go well . Progressive PragmaTism My final comments address two pieces that drew on biographical factors to analyze my scholarship . Both pieces penetratingly captured aspects of my thinking, and I found both edifying to read . My responses are limited , however, because I believe authors are not always the most reliable guides on how personal experiences and commitments might have influenced what they produce . Theorists like to believe the theories they construct are based on reason and evidence, and not reflections of personal backgrounds, but biography can matter in subtle ways that operate beneath self-awareness . Professor Tomohiko Shiina shows a connection between my progressive political views and the fact that my theoretical work draws out repressive aspects of law, emphasizing how law regularly supports the wealthy and powerful in society . He sees in my work a strong sense that law should be just . (Yes!) Based on these and other considerations, Professor Shiina construes “Social Legal Theory as a kind of manifesto which calls upon his reader, lawyers in particular, to be aware of the ethical nature of law .”37 I do not see it that way . Social legal theory, I believe, is a politically neutral branch of jurisprudence . The reason this theoretical framework exposes repressive aspects of law as a system of coercive power is not because the theory is inherently progressive but because law in the world often is repressive, which the theory brings to the surface . Consider that, in the late eighteenth century, Adam Smith surmised government and law initially emerged to protect property of the wealthy from depredations of the poor; and he offered this blunt explanation of why husbands have great authority over wives: “The laws of most countries being made by men generally are very severe on the women, who can have no remedy for this oppression .”38 Smith made these seemingly progressive observations about legal domination – echoed by critical theorists today – because he thought they were accurate accounts of reality . I highlight the repressive and inegalitarian aspects of law because theories of law written by analytical jurisprudents tend to downplay them (just as critical theorists make the opposite error of downplaying the valuable aspects of law) . That said, Professor Shiina might well be correct that what social legal theory exposes will often align with progressive objectives . If law is regularly controlled and utilized by the powerful to advance their ends, then a theoretical framework that aims at uncovering the social reality of law will confirm this tendency . Professor Kosuke Nasu identifies various ways in which my scholarship has been affected by my experiences as a lawyer, my belief in philosophical pragmatism, my personal desire to see how things really work, and my skeptical attitude toward ex37 38

Tomohiko Shiina, Social Legal Theory and Progressive Politics, in this volume 115–121 . Adam Smith, Lectures on Jurisprudence, edited by R . L . Meek, D . D . Raphael, and P . G . Stein (Liberty Fund 1982) 146, on property see 208 .

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treme theoretical positions . He focuses on the latter to make the incisive observation that my skepticism “is a radical and elaborate way of finding a belief worth cherishing despite endless doubts; in other words, a kind of reflexive skepticism .”39 This comment opened a window for me into my own thought processes . My scholarly work has traveled an unplanned, winding path with multiple detours, in an ongoing journey to construct a theoretical framework for understanding law in the world . A constant aspect of this intellectual quest has been my skepticism and doubt at the theories of others, particularly extremes, as well as at my own ideas, while searching for beliefs and theories that are sound . Social legal theory is where I have chosen to plant my theoretical flag because I am convinced it offers the most illuminating theoretical paradigm for understanding law in the world . As the astute commentaries in this volume reveal, I have a long way to go in systematically elaborating a theoretical account of law . Fortunately I am one theorist among many grappling with the same questions . There are many unexplored issues, and much hard work remains to be done by theorists who see the promise of social legal theory .

39

Nasu, Doubting Doubts, Rescuing Beliefs, supra 127 .

auThors’

addresses

Brian Z . Tamanaha Washington University School of Law One Brookings Drive St . Louis, MO 63130 USA Email: btamanaha@wulaw .wustl .edu Itaru Shimazu Faculty of Law, Dokkyo University 1-1 Gakuen-cho, Soka, Saitama 340-0042 Japan Email: Hag00235@nifty .com Ryuichi Nakayama Graduate School of Law and Politics Osaka University 1-1 Yamadaoka, Suita Osaka 565-0871 Japan Email: ryuichi@law .osaka-u .ac .jp Kiyoshi Hasegawa Graduate School of Social Sciences, Tokyo Metropolitan University 1-1 Minami-Osawa, Hachioji-shi Tokyo 192-0397 Japan Email: k-hase@tmu .ac .jp Michihiro Kaino Faculty of Law, Doshisha University Karasuma-higashi-iru, Imadegawa-dori, Kamigyo-ku Kyoto-shi 602-8580 Japan Email: kaino@naa .att .ne .jp

146 Hiroshi Matsuo Keio University Law School 2-15-45 Mita, Minato-ku Tokyo 108-8345 Japan Email: matsuo@ls .keio .ac .jp Takehiro Ohya Faculty of Law, Keio University 2-15-45 Mita, Minato-ku Tokyo 108-8345 Japan Email: t-ohya@keio .jp Ko Hasegawa School of Law, Hokkaido University Kita 9, Nishi 7, Kita-ku, Sapporo Hokkaido 060-0809 Japan Email: hasegawa@juris .hokudai .ac .jp Keisuke Kondo Faculty of Law, Kyoto University Yoshida-Honmachi, Sakyo-ku Kyoto 606-8501 Japan Email: kondo@law .kyoto-u .ac .jp Tomohiko Shiina Faculty of Management and Law, Aomori Chuo Gakuin University 12 Kanda Yokouchi Aomori City, Aomori Prefecture Japan Email: tomohiko-shiina@aomoricgu .ac .jp Kosuke Nasu Graduate School of Human and Environmental Studies Kyoto University Yoshida-nihonmatsu-cho, Sakyo-ku Kyoto 606-8501 Japan Email: nasu .kosuke .6a@kyoto-u .ac .jp

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98.

2003. 142 S., kt. ISBN 978-3-515-08284-6 Jan C. Joerden / Roland Wittmann (Hg.) Recht und Politik Jahrestagung der Deutschen Sektion der Internationalen Vereinigung für Rechtsund Sozialphilosophie vom 26.–29. September 2002 in Frankfurt an der Oder 2004. 184 S., kt. ISBN 978-3-515-08458-1 Philippe Mastronardi (Hg.) Das Recht im Spannungsfeld utilitaristischer und deontologischer Ehtik Vorträge der Tagung der Schweizer Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 15.–16. November 2002 in Luzern 2004. 170 S., kt. ISBN 978-3-515-08366-9 Aleksander Peczenik (Hg.) Justice Proceedings of the 21st World Congress of the International Association for Philosophy of Law and Social Philosophy in Lund (Sweden), 12th–18th August 2003 Volume 1 2004. 218 S., kt. ISBN 978-3-515-08483-3 Yasutomo Morigiwa / Fumihiko Ishiyama / Tetsu Sakurai (Hg.) Universal Minority Rights? A Transnatioal Approach. Proceedings of the 5th Kobe Lectures. Tokyo and Kyoto, December 1998 2004. 126 S., kt. ISBN 978-3-515-08504-5 Svein Eng (Hg.) Law and Practice Proceedings of the 21st World Congress of the International Association for Philosophy of Law and Social Philosophy in Lund (Sweden), 12th–18th August 2003 Volume 2 2005. 213 S., kt. ISBN 978-3-515-08524-3 Kenneth Einar Himma (Hg.) Law, Morality, and Legal Positivism Proceedings of the 21st World Congress of the International Association for Philosophy of Law and Social Philosophy in Lund (Sweden), 12th–18th August 2003 Volume 3 2004. 183 S., kt. ISBN 978-3-515-08513-7

99. Günther Kreuzbauer / Silvia Augeneder (Hg.) Der Juristische Streit Recht zwischen Rhetorik, Argumentation und Dogmatik 2004. 166 S., kt. ISBN 978-3-515-08480-2 100. Ulfrid Neumann / Winfried Hassemer / Ulrich Schroth (Hg.) Verantwortetes Recht Die Rechtsphilosophie Arthur Kaufmanns. Tagung vom 10.–11. Mai 2003 in München 2005. 188 S., kt. ISBN 978-3-515-08580-9 101. Kurt Seelmann (Hg.) Menschenwürde als Rechtsbegriff Tagung der Schweizer Sektion der Internationalen Vereinigung für Rechtsund Sozialphilosophie vom 25.–28. Juni 2003 in Basel 2004. 175 S., kt. ISBN 978-3-515-08591-5 102. Zenon Bankowski (Hg.) Epistemology and Ontology Proceedings of the 21st World Congress of the International Association for Philosophy of Law and Social Philosophy in Lund (Sweden), 12th–18th August 2003 Volume 4 2005. 195 S., kt. ISBN 978-3-515-08707-0 103. Carsten Bäcker / Stefan Baufeld (Hg.) Objektivität und Flexibilität im Recht Tagungen des Jungen Forums Rechtsphilosophie in der Internationalen Vereinigung für Rechts- und Sozialphilosophie im September 2004 in Kiel und im April 2005 in Hagen 2005. 213 S., kt. ISBN 978-3-515-08743-8 104. Robert Alexy (Hg.) Juristische Grundlagenforschung Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 23.–25. September 2004 in Kiel 2005. 251 S., kt. ISBN 978-3-515-08640-0 105. Philippe Mastronardi / Denis Taubert (Hg.) Staats- und Verfassungstheorie im Spannungsfeld der Disziplinen Tagung der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie vom 12.–13. November 2004 an der Universität

106.

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St. Gallen 2006. 255 S., kt. ISBN 978-3-515-08851-0 José Juan Moreso (Hg.) Legal Theory / Teoría del derecho Legal Positivism and Conceptual Analysis / Positivismo juridico y análisis conceptual. Proceedings of the 22nd World Congress of the International Association for Philosophy of Law and Social Philosophy in Granada, 2005 Volume 1 2007. 263 S., kt. ISBN 978-3-515-08910-4 José Rubio Carrecedo (Hg.) Political Philosophy / Filosofía política New Proposals for New Questions / Nuevas propuestas para nuevas cuestiones. Proceedings of the 22nd World Congress of the International Association for Philosophy of Law and Social Philosophy in Granada, 2005 Volume 2 2007. 239 S., kt. ISBN 978-3-515-08911-1 Andrés Ollero (Hg.) Human Rights and Ethics / Derechos humanos y Ética Proceedings of the 22nd World Congress of the International Association for Philosophy of Law and Social Philosophy in Granada, 2005 Volume 3 2007. 323 S., kt. ISBN 978-3-515-08912-8 Nicolás López Calera (Hg.) Globalization, Law and Economy / Globalización, Derecho y Economía Proceedings of the 22nd World Congress of the International Association for Philosophy of Law and Social Philosophy in Granada, 2005 Volume 4 2007. 321 S., kt ISBN 978-3-515-08913-5 Josep Aguiló-Regla (Hg.) Logic, Argumentation and Interpretation / Lógica, Argumentación e Interpretación Proceedings of the 22nd World Congress of the International Association for Philosophy of Law and Social Philosophy in Granada, 2005 Volume 5

111.

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2007. 206 S., kt. ISBN 978-3-515-08914-2 Marcel Senn / Dániel Puskás (Hg.) Gehirnforschung und rechtliche Verantwortung Fachtagung der Scheizerischen Vereinigung für Rechts- und Sozialphilosophie vom 19.–20. Mai 2006 an der Universität Bern 2006. 171 S., kt. ISBN 978-3-515-08963-0 Annette Brockmöller (Hg.) Hundert Jahre Archiv für Rechtsund Sozialphilosophie (1907–2007) Auswahl 14 bedeutender Aufsätze von Kelsen, Radbruch, Luhmann u. a. 2007. 330 S., kt. ISBN 978-3-515-09100-8 Horst Dreier / Eric Hilgendorf (Hg.) Kulturelle Identität als Grund und Grenze des Rechts Akten der Tagung der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 28.–30. September 2006 in Würzburg 2008. 374 S., geb. ISBN 978-3-515-09101-5 Jochen Bung / Brian Valerius / Sascha Ziemann (Hg.) Normativität und Rechtskritik Tagungen des Jungen Forums Rechtsphilosophie in der Internationalen Vereinigung für Rechts- und Sozialphilosophie im September 2006 in Würzburg und im März 2007 in Frankfurt am Main 2007. 269 S., kt. ISBN 978-3-515-09130-5 Marcel Senn / Dániel Puskás (Hg.) Rechtswissenschaft als Kulturwissenschaft? Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie vom 15.–16. Juni 2007 an der Universität Zürich 2007. 220 S., kt. ISBN 978-3-515-09149-7 Annette Brockmöller / Eric Hilgendorf (Hg.) Rechtsphilosophie im 20. Jahrhundert 100 Jahre Archiv für Rechtsund Sozialphilosophie 2009. 207 S., kt. ISBN 978-3-515-09285-2 Marcel Senn / Barbara Fritschi (Hg.) Rechtswissenschaft und Hermeneutik Kongress der Schweizerischen Vereinigung

118.

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für Rechts- und Sozialphilosophie vom 16.–17. Mai 2008 an der Universität Zürich 2009. 258 S., kt. ISBN 978-3-515-09155-8 Bart C. Labuschagne / Ari M. Solon (Hg.) Religion and State From separation to cooperation? Proceedings of the Special Workshop “Legal-philosophical reflections for a de-secularized world” held at the 23rd World Congress of the International Association for Philosophy of Law and Social Philosophy in Kraków, 2007 2009. 209 S., kt. ISBN 978-3-515-09368-2 Martin Borowski (Hg.) On the Nature of Legal Principles Proceedings of the Special Workshop “The Principles Theory” held at the 23rd World Congress of the International Association for Philosophy of Law and Social Philosophy in Kraków, 2007 2010. 182 S., kt. ISBN 978-3-515-09608-9 Friedrich Toepel (Hg.) Free Will in Criminal Law and Procedure Proceedings of the 23rd and 24th World Congress of the International Association for Philosophy of Law and Social Philosophy in Kraków, 2007, and in Beijing, 2009 2010. 122 S., kt. ISBN 978-3-515-09320-0 Marcel Senn / Bénédict Winiger / Barbara Fritschi / Philippe Avramov (Hg.) Recht und Globalisierung / Droit et Mondialisation Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 15.–16. Mai 2009, Universität Genf / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 15–16 mai 2009, Université de Genève 2010. 196 S., kt. ISBN 978-3-515-09673-7 Imer B. Flores / Uygur Gülriz (Hg.) Alternative Methods in the Education of Philosophy of Law and the Importance of Legal Philosophy in the Legal Education Proceedings of the 23rd World Congress of the International Associaction for Philosophy of Law and Social Philosophy “Law and Legal Cultures in the 21st Century: Diver-

123.

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sity and Unity” in Kraków, 2007 2010. 114 S., kt. ISBN 978-3-515-09695-9 Sascha Ziemann Archiv für Rechts- und Sozialphilosophie: Bibliographie und Dokumentation (1907–2009) 2010. 434 S., kt. ISBN 978-3-515-09719-2 Jan-Reinard Sieckmann (Hg.) Legal Reasoning: The Methods of Balancing Proceedings of the Special Workshop “Legal Reasoning: The Methods of Balancing” held at the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy (IVR), Beijing, 2009 2010. 205 S., kt. ISBN 978-3-515-09723-9 Edward Schramm / Wibke Frey / Lorenz Kähler / Sabine Müller-Mall / Friederike Wapler (Hg.) Konflikte im Recht – Recht der Konflikte Tagungen des Jungen Forums Rechtsphilosophie in der Internationalen Vereinigung für Rechts- und Sozialphilosophie in Tübingen und Göttingen 2010. 308 S., kt. ISBN 978-3-515-09729-1 Kristian Kühl (Hg.) Zur Kompetenz der Rechtsphilosophie in Rechtsfragen Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 24.–26. September 2008 in Tübingen 2011. 140 S., kt. ISBN 978-3-515-09816-8 Stephan Kirste / Anne van Aaken / Michael Anderheiden / Pasquale Policastro (Hg.) Interdisciplinary Research in Jurisprudence and Constitutionalism 2012. 267 S. mit 2 Abb. und 2 Tab., kt. ISBN 978-3-515-09941-7 Stephan Ast / Julia Hänni / Klaus Mathis / Benno Zabel (Hg.) Gleichheit und Universalität Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2010 in Halle (Saale) und im Februar 2011 in Luzern

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2012. 315 S., kt. ISBN 978-3-515-10067-0 Bénédict Winiger / Matthias Mahlmann / Philippe Avramov / Peter Gailhofer (Hg.) Recht und Verantwortung / Droit et responsabilité Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 11.–12. Juni 2010, Universität Zürich / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 11–12 juin 2010, Université de Zurich 2012. 206 S. mit 6 Abb., kt. ISBN 978-3-515-10066-3 Thomas Bustamante / Oche Onazi (Hg.) Global Harmony and the Rule of Law Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009. Vol. 1 2012. 133 S., kt. ISBN 978-3-515-10081-6 Thomas Bustamante / Oche Onazi (Hg.) Human Rights, Language and Law Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009. Vol. 2 2012. 192 S., kt. ISBN 978-3-515-10082-3 Yasutomo Morigiwa / Hirohide Takikawa (Hg.) Judicial Minimalism – For and Against Proceedings of the 9th Kobe Lectures. Tokyo, Nagoya, and Kyoto, June 2008 2012. 99 S., kt. ISBN 978-3-515-10136-3 Thomas Bustamante / Carlos Bernal Pulido (Hg.) On the Philosophy of Precedent Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009 Volume 3 2012. 144 S., kt. ISBN 978-3-515-10150-9 Matthias Kaufmann / Joachim Renzikowski (Hg.) Zurechnung und Verantwortung Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 22.–24. September

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2010 in Halle (Saale) 2012. 184 S., kt. ISBN 978-3-515-10180-6 Carsten Bäcker / Sascha Ziemann (Hg.) Junge Rechtsphilosophie 2012. 214 S., kt. ISBN 978-3-515-10268-1 Ulfrid Neumann / Klaus Günther / Lorenz Schulz (Hg.) Law, Science, Technology Plenary lectures presented at the 25th World Congress of the International Association for Philosophy of Law and Social Philosophy, Frankfurt am Main, 2011 2012. 173 S., kt. ISBN 978-3-515-10328-2 Winfried Brugger / Stephan Kirste (Hg.) Human Dignity as a Foundation of Law Proceedings of the Special Workshop held at the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy in Beijing, 2009 2013. 267 S., kt. ISBN 978-3-515-10440-1 Philippe Avramov / Mike Bacher / Paolo Becchi / Bénédict Winiger (Hg.) Ethik und Recht in der Bioethik / Ethique et Droit en matière de Bioéthique Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 11.–12. Mai 2012, Universität Luzern / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 11–12 mai 2012, Université de Lucerne 2013. 226 S., kt. ISBN 978-3-515-10436-4 Tetsu Sakurai / Makoto Usami (Hg.) Human Rights and Global Justice The 10th Kobe Lectures, July 2011 2014. 167 S., kt. ISBN 978-3-515-10489-0 Bernhard Jakl / Beatrice Brunhöber / Ariane Grieser / Juliane Ottmann / Tim Wihl (Hg.) Recht und Frieden – Wozu Recht? Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2012 in Münster und im April 2013 in Berlin 2014. 206 S. mit 3 Abb., kt. ISBN 978-3-515-10806-5

141. Axel Tschentscher / Caroline Lehner / Matthias Mahlmann / Anne Kühler (Hg.) Soziale Gerechtigkeit heute Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 7. Juni 2013, Universität Bern 2015. 139 S., kt. ISBN 978-3-515-10907-9 142. Daniela Demko / Kurt Seelmann / Paolo Becchi (Hg.) Würde und Autonomie Fachtagung der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 24.–25. April 2013, Landgut Castelen, Augst 2015. 216 S., kt. ISBN 978-3-515-10949-9 143. Jean-Christophe Merle / Alexandre T. G. Trivisonno (Hg.) Kant’s Theory of Law Proceedings of the Special Workshop “Kant’s Concept of Law” held at the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 2015. 138 S., kt. ISBN 978-3-515-11037-2 144. Júlio Aguiar de Oliveira / Stanley L. Paulson / Alexandre T. G. Trivisonno (Hg.) Alexy’s Theory of Law Proceedings of the Special Workshop “Alexy’s Theory of Law” held at the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 2015. 187 S., kt. ISBN 978-3-515-11043-3 145. Annette Brockmöller / Stephan Kirste / Ulfrid Neumann (Hg.) Wert und Wahrheit in der Rechtswissenschaft 2015. 113 S., kt. ISBN 978-3-515-11053-2 146. Marcelo Campos Galuppo / MÔnica Sette Lopes / Karine Salgado / Thomas Bustamante / Lucas Gontijo (Hg.) Human Rights, Rule of Law and the Contemporary Social Challenges in Complex Societies Proceedings of the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 2015. 155 S. mit 2 Abb., kt. ISBN 978-3-515-11130-0

147. Paul Tiedemann (Hg.) Right to Identity Proceedings of the Special Workshop “Right to Identity” held at the 27th World Congress of the International Association for Philosophy of Law and Social Philosophy in Washington DC, 2015 2016. 185 S., kt. ISBN 978-3-515-11244-4 148. Hajime Yoshino / Andrés Santacoloma Santacoloma / Gonzalo Villa Rosas (Hg.) Truth and Objectivity in Law and Morals Proceedings of the Special Workshop Held at the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 2016. 158 S., kt. ISBN 978-3-515-11260-4 149. Alain Papaux / Simone Zurbuchen (Hg.) Philosophy, Law and Environmental Crisis / Philosophie, droit et crise environnementale Workshop of the Swiss Society for Philosophy of Law and Social Philosophy, September 12–13, 2014, Swiss Institute of Comparative Law, Lausanne / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 12–13 septembre 2014 2016. 153 S. mit 2 Tab., kt. ISBN 978-3-515-11387-8 150. Markus Abraham / Till Zimmermann / Sabrina Zucca-Soest (Hg.) Vorbedingungen des Rechts Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2014 in Passau und im April 2015 in Hamburg 2016. 231 S., kt. ISBN 978-3-515-11389-2 151. André Ferreira Leite de Paula / Andrés Santacoloma Santacoloma / Gonzalo Villa Rosas (Hg.) Truth and Objectivity in Law and Morals II Proceedings of the Second Special Workshop held at the 27th World Congress of the International Association for Philosophy of Law and Social Philosophy in Washington D.C., 2015 2016. 210 S. mit 4 Abb., kt. ISBN 978-3-515-11484-4

Brian Tamanaha has consistently sought his own version of general jurisprudence, stressing mutual influence between law and cultural and historical diversity of human lives. Now he takes a “third-way” approach of jurisprudence, which inherits the viewpoints of legal realism, historical jurisprudence, and sociological jurisprudence. Tamanaha identifies several alluring problems, like the complacence of the “law and development” projects, the prevalence of legal instrumentalism, the debate between legal formalists and legal realists, and the universal value and applicability of the rule of law.

The contributors of this volume critically approach Tamanaha’s arguments and hypotheses, or his methodological position, some from particular contexts of historical experiences of Japanese society, and some from more general and theoretical perspectives. This will help us to deepen the understandings about certain central problems of jurisprudence and philosophy of law, as well as significance of Tamanaha’s own jurisprudential accomplishments and future prospects.

www.steiner-verlag.de Franz Steiner Verlag

ISBN 978-3-515-11570-4

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