Brian Z. Tamanaha (St. John’s University – School of Law) has posted Law (Oxford International Encyclopedia of Legal History, 2008) on SSRN. Here is the abstract:
"What is law?" is an age-old question that has eluded resolution. This essay covers attempts to answer this question within legal theory and within the social sciences. It sets out three main categories of answers to this question and explains the limitations of each. It argues that a more fruitful approach would accept that there are multiple concepts of law.
The essay, which will serve as an entry for an encyclopedia, is intended as a concise overview for non-specialists, although it should also be useful for legal theorists and socio-legal theorists who are interested in the concept of law.
And a bit from the text:
To summarize, the impasse over the concept of law cannot be resolved because every formulation is based upon a commitment about the archetype of law, and theorists often have different intuitions about this. Disagreements among theorists over what law is often are linked to differences over what they think law ought to be. Even theorists who agree upon what represents the epitome of law may disagree over its essential features or how best to formulate those features. Moreover, theorists approach from different perspectives and disciplines, with contrasting presuppositions and objectives. Finally, the question has been taken up by theorists in different surrounding circumstances in connection with different problems affecting how they perceive and answer the question. Given these factors, it is no wonder that the question What is law? has proven so intransigent to resolution.
And one more bit:
A large number of particular and general phenomena are conventionally viewed as “law,” including international law, customary law, canon law, the Sharia, natural law, state legal systems, the lex mercatoria, and more. Some of these versions of law come in several variations, some are unique, some interact with and penetrate one another, and some possess characteristics shared by others. Perhaps the only elements that run through all of these versions of law are that they in some sense involve rules or principles and all make a claim to authority. It should be possible to produce a definition or concept for each, or at least to specify the distinctive elements and characteristics of each. The focus no longer will be trying to answer What is law”? but instead will be trying to identify and analyze the characteristics of various phenomena that are conventionally considered to be law.
This suggested approach has two immediate benefits. First, former debates over which concept of law is the correct concept will be bypassed, for there is no single correct concept of law; also, arguments about whether international law or customary law qualify as “law,” and those of a similar vein, will be moot. For the reasons described earlier, the former debate was irresolvable, and the latter debate involved little more than the imperial insistence of theorists that phenomena that do not match their favored version are disqualified. Theoretical and empirical discussion on these matters should instead focus on whether particular concepts or characterizations are adequate to the manifestation of law they purport to capture.
Sure to be controversial. As frequent readers of LTB know, I’m a huge Tamanaha fan. Highly recommended, very readable, and short!