Brian Z. Tamanaha
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780199244676
- eISBN:
- 9780191715044
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199244676.001.0001
- Subject:
- Law, Philosophy of Law
This book provides a theoretical and sociological exploration of the relationship between law and society. Law is generally understood to be a mirror of society — a reflection of its customs and ...
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This book provides a theoretical and sociological exploration of the relationship between law and society. Law is generally understood to be a mirror of society — a reflection of its customs and morals — that functions to maintain social order. Focusing on this common understanding, the book conducts a survey of Western legal and social theories about law and its relationship within society. It then engages in a theoretical and empirical critique of this common understanding. The theoretical critique exposes the mythical quality of the two most often repeated theories about the emergence of law, the evolutionary theory and the social contract theory. It also discusses a fundamental shift, resulting from Enlightenment ideas about reason and morality, in the theoretical understanding of the relationship between morality and law. The empirical critique covers various subjects, primarily including the impact of legal transplantation and globalisation. The book then constructs an alternative universally applicable framework with which to understand the relationship between law and society. The core component to this framework is a non-essentialist approach to the concept of law, which provides a basis for understanding of the phenomenon of legal pluralism. Finally, the book articulates how this framework would operate in facilitating our ability to study, understand, and criticise the relationship between law and society in a variety of contexts around the world today. In addition to illuminating the relationship between law and society, a key aspect of the argument of this book is to construct an approach to law that integrates legal theory with sociological approaches to law.Less
This book provides a theoretical and sociological exploration of the relationship between law and society. Law is generally understood to be a mirror of society — a reflection of its customs and morals — that functions to maintain social order. Focusing on this common understanding, the book conducts a survey of Western legal and social theories about law and its relationship within society. It then engages in a theoretical and empirical critique of this common understanding. The theoretical critique exposes the mythical quality of the two most often repeated theories about the emergence of law, the evolutionary theory and the social contract theory. It also discusses a fundamental shift, resulting from Enlightenment ideas about reason and morality, in the theoretical understanding of the relationship between morality and law. The empirical critique covers various subjects, primarily including the impact of legal transplantation and globalisation. The book then constructs an alternative universally applicable framework with which to understand the relationship between law and society. The core component to this framework is a non-essentialist approach to the concept of law, which provides a basis for understanding of the phenomenon of legal pluralism. Finally, the book articulates how this framework would operate in facilitating our ability to study, understand, and criticise the relationship between law and society in a variety of contexts around the world today. In addition to illuminating the relationship between law and society, a key aspect of the argument of this book is to construct an approach to law that integrates legal theory with sociological approaches to law.
Carol J Greenhouse
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199580910
- eISBN:
- 9780191723025
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580910.003.0002
- Subject:
- Law, Comparative Law
This chapter argues that we should resist imagining the law—anthropology relation as prefigured in the law/society distinction, since that very distinction is inaccessible except in so far as it is ...
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This chapter argues that we should resist imagining the law—anthropology relation as prefigured in the law/society distinction, since that very distinction is inaccessible except in so far as it is worked contingently in relation to the legitimacy of federal powers. If the judicialization of politics and the politicization of law are dominant keys in our age, then law and anthropology together are well placed to sustain the radical relativity of the law—society relation, its real-time timeliness, and the elusiveness of law's dominance within deregulation by attending to contests over the nature and limits of law wherever these are waged. Such affirmations of the nation are not consistently on one side or the other with respect to outcomes. Rather, they press a question on to the competition between cooperative and demutualized renderings of the public and their effects, as markets imagined as consumer-driven increasingly supplant political communities with the legal fiction of self-regulation.Less
This chapter argues that we should resist imagining the law—anthropology relation as prefigured in the law/society distinction, since that very distinction is inaccessible except in so far as it is worked contingently in relation to the legitimacy of federal powers. If the judicialization of politics and the politicization of law are dominant keys in our age, then law and anthropology together are well placed to sustain the radical relativity of the law—society relation, its real-time timeliness, and the elusiveness of law's dominance within deregulation by attending to contests over the nature and limits of law wherever these are waged. Such affirmations of the nation are not consistently on one side or the other with respect to outcomes. Rather, they press a question on to the competition between cooperative and demutualized renderings of the public and their effects, as markets imagined as consumer-driven increasingly supplant political communities with the legal fiction of self-regulation.
Brian Z. Tamanaha
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780199244676
- eISBN:
- 9780191715044
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199244676.003.0002
- Subject:
- Law, Philosophy of Law
This chapter reviews seven basic categories of thought in Western social and legal theory on the relationship between law and society: classical legal theory, natural law tradition, legal positivist ...
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This chapter reviews seven basic categories of thought in Western social and legal theory on the relationship between law and society: classical legal theory, natural law tradition, legal positivist tradition, custom-culture tradition, law and social organisation tradition, selective mirror tradition, and instrumentalist tradition. It appears that the Greeks conceived of positive (or ‘written’) law much as we do, in term of authoritative declarations of the state (keeping in mind that theirs was primarily a city-state, not the nation state of today). Their views are forerunners of the command theory of law, given its definitive formulation by John Austin in the early 19th century. Both Plato and Aristotle believed that the fundamental function of law is the maintenance of social order.Less
This chapter reviews seven basic categories of thought in Western social and legal theory on the relationship between law and society: classical legal theory, natural law tradition, legal positivist tradition, custom-culture tradition, law and social organisation tradition, selective mirror tradition, and instrumentalist tradition. It appears that the Greeks conceived of positive (or ‘written’) law much as we do, in term of authoritative declarations of the state (keeping in mind that theirs was primarily a city-state, not the nation state of today). Their views are forerunners of the command theory of law, given its definitive formulation by John Austin in the early 19th century. Both Plato and Aristotle believed that the fundamental function of law is the maintenance of social order.
Brian Z. Tamanaha
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780199244676
- eISBN:
- 9780191715044
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199244676.003.0007
- Subject:
- Law, Philosophy of Law
This chapter builds upon the conventionalist approach to law to develop a non-essentialist version of legal pluralism. The analysis proceeds largely in relation to sociological dimensions of legal ...
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This chapter builds upon the conventionalist approach to law to develop a non-essentialist version of legal pluralism. The analysis proceeds largely in relation to sociological dimensions of legal pluralism, thereby complementing the predominantly legal theory discussed earlier. This and the previous chapter together present a new way of understanding the kinds of legal phenomena operative in society today, and of how they should be studied, in ways that depart from but are also continuous with legal positivism as well as sociological approaches to law.Less
This chapter builds upon the conventionalist approach to law to develop a non-essentialist version of legal pluralism. The analysis proceeds largely in relation to sociological dimensions of legal pluralism, thereby complementing the predominantly legal theory discussed earlier. This and the previous chapter together present a new way of understanding the kinds of legal phenomena operative in society today, and of how they should be studied, in ways that depart from but are also continuous with legal positivism as well as sociological approaches to law.
Brian Z. Tamanaha
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780199244676
- eISBN:
- 9780191715044
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199244676.003.0005
- Subject:
- Law, Philosophy of Law
Powerful as the mirror thesis is, a few voices have expressed caution or outright opposition. This chapter elaborates on concrete social-historical reasons to question the assumption that law mirrors ...
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Powerful as the mirror thesis is, a few voices have expressed caution or outright opposition. This chapter elaborates on concrete social-historical reasons to question the assumption that law mirrors society's customs and morality, as well as assumptions about the social order function of law. The discussion is divided into three sections, the first dealing with legal transplants, the second with the globalisation of law, and the third with the ‘gap problem’. There are two distinct versions of the gap problem: the gap between ‘law-in-the-books’ and ‘law-in-action’, and the gap between legal rules and what people in the community actually do.Less
Powerful as the mirror thesis is, a few voices have expressed caution or outright opposition. This chapter elaborates on concrete social-historical reasons to question the assumption that law mirrors society's customs and morality, as well as assumptions about the social order function of law. The discussion is divided into three sections, the first dealing with legal transplants, the second with the globalisation of law, and the third with the ‘gap problem’. There are two distinct versions of the gap problem: the gap between ‘law-in-the-books’ and ‘law-in-action’, and the gap between legal rules and what people in the community actually do.
Brian Z. Tamanaha
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780199244676
- eISBN:
- 9780191715044
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199244676.003.0008
- Subject:
- Law, Philosophy of Law
This chapter ties all of the strings of the preceding argument together to set out the basic elements of the general jurisprudence. It specifies a replacement for the notion of society, and lays out ...
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This chapter ties all of the strings of the preceding argument together to set out the basic elements of the general jurisprudence. It specifies a replacement for the notion of society, and lays out a typology of sources of social order and a typology of kinds of law. It provides a unifying standard and the core enquiries around which the general jurisprudence is constructed. It also provides a list of tentative hypotheses regarding the relationship between law and society, both to identify fruitful lines of research and to indicate the edifying potential of the general jurisprudence.Less
This chapter ties all of the strings of the preceding argument together to set out the basic elements of the general jurisprudence. It specifies a replacement for the notion of society, and lays out a typology of sources of social order and a typology of kinds of law. It provides a unifying standard and the core enquiries around which the general jurisprudence is constructed. It also provides a list of tentative hypotheses regarding the relationship between law and society, both to identify fruitful lines of research and to indicate the edifying potential of the general jurisprudence.
Jeremy Horder
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780199225781
- eISBN:
- 9780191715174
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199225781.001.0001
- Subject:
- Law, Criminal Law and Criminology
This book examines the gradual emancipation of the individual in national and international law and the changing social attitudes towards personal choice in constituting identity. It demonstrates ...
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This book examines the gradual emancipation of the individual in national and international law and the changing social attitudes towards personal choice in constituting identity. It demonstrates that this desire of persons for choice is not limited to Western industrial society but a historical development powered by such independent variables as urbanisation, the communications revolution, education, and economic development. These factors are changing the way persons affiliate: their attitudes towards nationality, religion, careers, sexuality, and gender roles. In the new climate of personal freedom, individuals increasingly select the components of their identity, choosing one or several from among multiple possible affiliations and questioning—even sometimes rejecting—the imposed or inherited forms of socialisation, but despite such resistance, the book demonstrates that we are now entering the age of the individual.Less
This book examines the gradual emancipation of the individual in national and international law and the changing social attitudes towards personal choice in constituting identity. It demonstrates that this desire of persons for choice is not limited to Western industrial society but a historical development powered by such independent variables as urbanisation, the communications revolution, education, and economic development. These factors are changing the way persons affiliate: their attitudes towards nationality, religion, careers, sexuality, and gender roles. In the new climate of personal freedom, individuals increasingly select the components of their identity, choosing one or several from among multiple possible affiliations and questioning—even sometimes rejecting—the imposed or inherited forms of socialisation, but despite such resistance, the book demonstrates that we are now entering the age of the individual.
Brian Z. Tamanaha
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780199244676
- eISBN:
- 9780191715044
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199244676.003.0003
- Subject:
- Law, Philosophy of Law
This chapter presents theoretical challenges to the portrait of the relationship between law and society. Almost every major strain of Western legal and social theory has articulated, or taken for ...
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This chapter presents theoretical challenges to the portrait of the relationship between law and society. Almost every major strain of Western legal and social theory has articulated, or taken for granted, an account of the relationship between law and society as one of close integration and association. It is widely and routinely assumed that law reflects and mirrors society, and operates to maintain social order. The chapter argues that the selective mirror and instrumental traditions, while they continue to hold onto mirror beliefs, had by implication taken the first steps down a path that ultimately leads away from the mirror thesis, at least as a taken for granted assumption about the nature of law. It articulates and challenges the two legitimating myths about the origins of law that dominate Western theory and consciousness, and examines the implications of the monopolisation of legal knowledge by professionals.Less
This chapter presents theoretical challenges to the portrait of the relationship between law and society. Almost every major strain of Western legal and social theory has articulated, or taken for granted, an account of the relationship between law and society as one of close integration and association. It is widely and routinely assumed that law reflects and mirrors society, and operates to maintain social order. The chapter argues that the selective mirror and instrumental traditions, while they continue to hold onto mirror beliefs, had by implication taken the first steps down a path that ultimately leads away from the mirror thesis, at least as a taken for granted assumption about the nature of law. It articulates and challenges the two legitimating myths about the origins of law that dominate Western theory and consciousness, and examines the implications of the monopolisation of legal knowledge by professionals.
Robin Feldman
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195368581
- eISBN:
- 9780199867455
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195368581.001.0001
- Subject:
- Law, Criminal Law and Criminology
The allure of science has always captivated members of the legal profession. Its siren's song offers a tune of perfection and the promise of endowing law with the respect and deference from society ...
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The allure of science has always captivated members of the legal profession. Its siren's song offers a tune of perfection and the promise of endowing law with the respect and deference from society that we crave. We continually look to science to rescue us from the discomfort of difficult legal decisions, and we are constantly disappointed. The powerful allure of science flows in part from our distress over the imperfections of law. With 20th-century legal theory ringing in our ears, it is tempting to see law as a hopeless enterprise, distorted by biases, hampered by ineptitude, and cluttered with contradictions. Anything deconstructed loses power, although ultimately, the instinct to deconstruct everything loses power, itself, by leaving nothing. Nevertheless, with these critical perspectives in mind, the call of science is particularly strong. This book traces the interrelation of law and science, analyzing law's attempts to import science into law and attempts to export law's problems to science. Though most authors frame problems at the intersection of law and science in terms of how rapidly scientific information changes and how frequently the legal system distorts science, this book argues that problems at the intersection of law and science flow not from the changing nature of science but from the changing nature of law. With this in mind, the book uses examples from doctrines related to abortion, gene patenting, copyright, environmental regulation, antitrust law, the insanity defense, and other topics to explore the nature of law and to suggest approaches for making science work more effectively within the domain of law. Most important, the book argues that we are unlikely to avoid the cycles of exaltation and disappointment unless we are willing to relinquish the desire for completion and perfection in law.Less
The allure of science has always captivated members of the legal profession. Its siren's song offers a tune of perfection and the promise of endowing law with the respect and deference from society that we crave. We continually look to science to rescue us from the discomfort of difficult legal decisions, and we are constantly disappointed. The powerful allure of science flows in part from our distress over the imperfections of law. With 20th-century legal theory ringing in our ears, it is tempting to see law as a hopeless enterprise, distorted by biases, hampered by ineptitude, and cluttered with contradictions. Anything deconstructed loses power, although ultimately, the instinct to deconstruct everything loses power, itself, by leaving nothing. Nevertheless, with these critical perspectives in mind, the call of science is particularly strong. This book traces the interrelation of law and science, analyzing law's attempts to import science into law and attempts to export law's problems to science. Though most authors frame problems at the intersection of law and science in terms of how rapidly scientific information changes and how frequently the legal system distorts science, this book argues that problems at the intersection of law and science flow not from the changing nature of science but from the changing nature of law. With this in mind, the book uses examples from doctrines related to abortion, gene patenting, copyright, environmental regulation, antitrust law, the insanity defense, and other topics to explore the nature of law and to suggest approaches for making science work more effectively within the domain of law. Most important, the book argues that we are unlikely to avoid the cycles of exaltation and disappointment unless we are willing to relinquish the desire for completion and perfection in law.
Brian Z. Tamanaha
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780199244676
- eISBN:
- 9780191715044
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199244676.003.0004
- Subject:
- Law, Philosophy of Law
Fundamental changes have occurred in the way in which theorists talk about and understand the relationship between law and society, changes that have taken centuries to develop and are the result of ...
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Fundamental changes have occurred in the way in which theorists talk about and understand the relationship between law and society, changes that have taken centuries to develop and are the result of a cluster of philosophical, political, economic, social, and cultural factors. This chapter elaborates on several key changes. The instrumental tradition is a product of and has contributed to these changes. The chapter presents a theoretical challenge to the mirror thesis based on a law-society framework consisting of the following elements: custom/consent, morality/reason, and positive law.Less
Fundamental changes have occurred in the way in which theorists talk about and understand the relationship between law and society, changes that have taken centuries to develop and are the result of a cluster of philosophical, political, economic, social, and cultural factors. This chapter elaborates on several key changes. The instrumental tradition is a product of and has contributed to these changes. The chapter presents a theoretical challenge to the mirror thesis based on a law-society framework consisting of the following elements: custom/consent, morality/reason, and positive law.
Brian Z. Tamanaha
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780199244676
- eISBN:
- 9780191715044
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199244676.003.0006
- Subject:
- Law, Philosophy of Law
This chapter proposes a conventionalist approach to the concept of law and comprehensively reconstructs legal positivism into what is called socio-legal positivism. This extensive discussion of legal ...
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This chapter proposes a conventionalist approach to the concept of law and comprehensively reconstructs legal positivism into what is called socio-legal positivism. This extensive discussion of legal positivism recognises the heritage of general jurisprudence as a legal positivist enterprise, and furthers a project begun in the book Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law. One of the key themes in this book was to infuse legal theory with insights from social scientific approaches to law, and vice versa. Socio-legal positivism attempts to accomplish this in an integrated fashion.Less
This chapter proposes a conventionalist approach to the concept of law and comprehensively reconstructs legal positivism into what is called socio-legal positivism. This extensive discussion of legal positivism recognises the heritage of general jurisprudence as a legal positivist enterprise, and furthers a project begun in the book Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law. One of the key themes in this book was to infuse legal theory with insights from social scientific approaches to law, and vice versa. Socio-legal positivism attempts to accomplish this in an integrated fashion.
Mary E. Vogel
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9780195101751
- eISBN:
- 9780199851461
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195101751.003.0003
- Subject:
- Law, Legal History
This chapter provides theoretical perspective on court activity in the early American republic, in general, and on plea bargaining, in particular. It describes the strengths and weaknesses of ...
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This chapter provides theoretical perspective on court activity in the early American republic, in general, and on plea bargaining, in particular. It describes the strengths and weaknesses of alternative theoretical perspectives on law and suggests that what the law does is establish the scope and limitations of state power, consolidate relations of citizenship, and shape forms of organizing. The chapter also discusses existing theories about law and society, including those of Antonio Gramsci, Michel Foucault, and Jürgen Habermas.Less
This chapter provides theoretical perspective on court activity in the early American republic, in general, and on plea bargaining, in particular. It describes the strengths and weaknesses of alternative theoretical perspectives on law and suggests that what the law does is establish the scope and limitations of state power, consolidate relations of citizenship, and shape forms of organizing. The chapter also discusses existing theories about law and society, including those of Antonio Gramsci, Michel Foucault, and Jürgen Habermas.
Brian Z. Tamanaha
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780199244676
- eISBN:
- 9780191715044
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199244676.003.0001
- Subject:
- Law, Philosophy of Law
A formidable threshold task in the project to construct a general jurisprudence is to come up with a characterisation of the law-society relationship. This relationship is too complex and unruly to ...
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A formidable threshold task in the project to construct a general jurisprudence is to come up with a characterisation of the law-society relationship. This relationship is too complex and unruly to capture fully in a single formula, and can be approached from too many different perspectives. This chapter describes a working framework for the relationship between law and society, pared down to two basic components. The first component consists of two core themes about the relationship between law and society: the idea that law is a mirror of society and the idea that the function of law is to maintain social order. The second component consists of a breakdown of connections between three elements: custom/consent, morality/reason, and positive law. Every theory about law and society encompasses one or another or both of these components.Less
A formidable threshold task in the project to construct a general jurisprudence is to come up with a characterisation of the law-society relationship. This relationship is too complex and unruly to capture fully in a single formula, and can be approached from too many different perspectives. This chapter describes a working framework for the relationship between law and society, pared down to two basic components. The first component consists of two core themes about the relationship between law and society: the idea that law is a mirror of society and the idea that the function of law is to maintain social order. The second component consists of a breakdown of connections between three elements: custom/consent, morality/reason, and positive law. Every theory about law and society encompasses one or another or both of these components.
D. J. GALLIGAN
- Published in print:
- 2006
- Published Online:
- March 2012
- ISBN:
- 9780199291830
- eISBN:
- 9780191700675
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199291830.003.0003
- Subject:
- Law, Philosophy of Law
There are several ways of examining law in society. Such disciplinary approaches would include a historical approach, a political science approach, an economic approach, and approaches from other ...
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There are several ways of examining law in society. Such disciplinary approaches would include a historical approach, a political science approach, an economic approach, and approaches from other fields of social science like sociology, psychology, anthropology. Each of these approaches has its own aims and methods. This book uses an approach that is located within socio-legal studies or law-and-society, and this approach aims to understand law as a part of society as it has a distinct social form while it becomes interconnected with other social forms. The method for this approach consist of identifying the features of a legal order that are important in determining social facts that affect the actions of citizens and officials and examining the implications and meanings associated with these features.Less
There are several ways of examining law in society. Such disciplinary approaches would include a historical approach, a political science approach, an economic approach, and approaches from other fields of social science like sociology, psychology, anthropology. Each of these approaches has its own aims and methods. This book uses an approach that is located within socio-legal studies or law-and-society, and this approach aims to understand law as a part of society as it has a distinct social form while it becomes interconnected with other social forms. The method for this approach consist of identifying the features of a legal order that are important in determining social facts that affect the actions of citizens and officials and examining the implications and meanings associated with these features.
William J. Novak
- Published in print:
- 2015
- Published Online:
- May 2016
- ISBN:
- 9780226277646
- eISBN:
- 9780226277813
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226277813.003.0012
- Subject:
- History, Political History
This chapter draws attention to the vital role of interdisciplinary perspectives in law, history, sociology, and political science in redirecting our understanding of the origins, development, and ...
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This chapter draws attention to the vital role of interdisciplinary perspectives in law, history, sociology, and political science in redirecting our understanding of the origins, development, and nature of the American state. It highlights the particularly formative role of an emerging theoretical literature concerning the character of statecraft in modern democratic regimes. The paper begins with an acknowledgment of the difficulty of the state concept as articulated in the diverse contributions of American history, political sociology, and American Political Development. It goes on to question the predominance of the essentially bureaucratic and Weberian model of the state that has governed thinking about and controlled discussion of the American state for the last two generations. It concludes by using the interdisciplinary perspectives that have recently emerged in socio-legal studies in the United States to generate an alternative approach to American state development that takes account of the nature of democratic rule as well as the fungibility of the state/society boundary.Less
This chapter draws attention to the vital role of interdisciplinary perspectives in law, history, sociology, and political science in redirecting our understanding of the origins, development, and nature of the American state. It highlights the particularly formative role of an emerging theoretical literature concerning the character of statecraft in modern democratic regimes. The paper begins with an acknowledgment of the difficulty of the state concept as articulated in the diverse contributions of American history, political sociology, and American Political Development. It goes on to question the predominance of the essentially bureaucratic and Weberian model of the state that has governed thinking about and controlled discussion of the American state for the last two generations. It concludes by using the interdisciplinary perspectives that have recently emerged in socio-legal studies in the United States to generate an alternative approach to American state development that takes account of the nature of democratic rule as well as the fungibility of the state/society boundary.
Paul J. du Plessis (ed.)
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780748668175
- eISBN:
- 9780748684328
- Item type:
- book
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748668175.001.0001
- Subject:
- Law, Legal History
Roman law as a field of study is rapidly evolving to reflect new perspectives and approaches in research. Scholars who work on the subject are increasingly being asked to conduct research in an ...
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Roman law as a field of study is rapidly evolving to reflect new perspectives and approaches in research. Scholars who work on the subject are increasingly being asked to conduct research in an interdisciplinary manner whereby Roman law is not merely seen as a set of abstract concepts devoid of any background, but as a body of law which operated in a specific social, economic and cultural context. Since the mid-1960s, a new academic movement has advocated a “law and society” approach to the study of Roman law instead of the prevailing dogmatic methodology. This “context-based” approach to the study of law and society in the Roman world is an exciting new field which legal historians must address and which is largely unexplored. This interdisciplinary collection focuses on three larger themes which have emerged from these studies: Roman legal thought, the interaction between legal theory and legal practice and the relationship between law and economics.Less
Roman law as a field of study is rapidly evolving to reflect new perspectives and approaches in research. Scholars who work on the subject are increasingly being asked to conduct research in an interdisciplinary manner whereby Roman law is not merely seen as a set of abstract concepts devoid of any background, but as a body of law which operated in a specific social, economic and cultural context. Since the mid-1960s, a new academic movement has advocated a “law and society” approach to the study of Roman law instead of the prevailing dogmatic methodology. This “context-based” approach to the study of law and society in the Roman world is an exciting new field which legal historians must address and which is largely unexplored. This interdisciplinary collection focuses on three larger themes which have emerged from these studies: Roman legal thought, the interaction between legal theory and legal practice and the relationship between law and economics.
Barry Nicholas
- Published in print:
- 2000
- Published Online:
- October 2011
- ISBN:
- 9780199510177
- eISBN:
- 9780191700972
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199510177.003.0015
- Subject:
- History, British and Irish Modern History
The state of legal education in England had been a cause for public concern for some twenty years before the creation of the School of Law and Modern History at Oxford University in 1850. Such ...
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The state of legal education in England had been a cause for public concern for some twenty years before the creation of the School of Law and Modern History at Oxford University in 1850. Such concern was greatly overdue. Until 1828 and 1829 when John Austin and Andrew Amos began lecturing at what was to become University College London, there had been for many years no effective public teaching of law anywhere. In 1833, the Incorporated Law Society was moved to begin the provision of courses for articled clerks. But there was little else. It was in these circumstances that in 1846 a Select Committee of the House of Commons was appointed to inquire into the state of legal education in England and Ireland. It reported in the same year and the evidence which it heard made plain, among other things, the emptiness of even such legal education as Oxford ostensibly provided.Less
The state of legal education in England had been a cause for public concern for some twenty years before the creation of the School of Law and Modern History at Oxford University in 1850. Such concern was greatly overdue. Until 1828 and 1829 when John Austin and Andrew Amos began lecturing at what was to become University College London, there had been for many years no effective public teaching of law anywhere. In 1833, the Incorporated Law Society was moved to begin the provision of courses for articled clerks. But there was little else. It was in these circumstances that in 1846 a Select Committee of the House of Commons was appointed to inquire into the state of legal education in England and Ireland. It reported in the same year and the evidence which it heard made plain, among other things, the emptiness of even such legal education as Oxford ostensibly provided.
RICHARD L. ABEL
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780198260349
- eISBN:
- 9780191682094
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198260349.003.0003
- Subject:
- Law, Legal Profession and Ethics
All producers seek protection from the competition that is the defining characteristic of market economies. The first line of defence is control over entry. By the beginning of the nineteenth ...
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All producers seek protection from the competition that is the defining characteristic of market economies. The first line of defence is control over entry. By the beginning of the nineteenth century, the Bar had long enjoyed professional status. It took the entire nineteenth century for the practising Bar to double, and it did not recover from the 25% loss suffered during World War I. After the Law Society required the first professional examination in 1836, the number of solicitors stagnated. However, the post-war era initiated a major transformation and starts at the Bar increased. In the late 1980s, however, the profession was concerned about a ‘recruitment crisis’, not overcrowding. Finally, the profession was no more able to control the ebb and flow of supply than Canute to halt the tide. Its efforts to do so during this decade further delegitimated its claim to speak in the public interest.Less
All producers seek protection from the competition that is the defining characteristic of market economies. The first line of defence is control over entry. By the beginning of the nineteenth century, the Bar had long enjoyed professional status. It took the entire nineteenth century for the practising Bar to double, and it did not recover from the 25% loss suffered during World War I. After the Law Society required the first professional examination in 1836, the number of solicitors stagnated. However, the post-war era initiated a major transformation and starts at the Bar increased. In the late 1980s, however, the profession was concerned about a ‘recruitment crisis’, not overcrowding. Finally, the profession was no more able to control the ebb and flow of supply than Canute to halt the tide. Its efforts to do so during this decade further delegitimated its claim to speak in the public interest.
D. J. GALLIGAN
- Published in print:
- 2006
- Published Online:
- March 2012
- ISBN:
- 9780199291830
- eISBN:
- 9780191700675
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199291830.003.0014
- Subject:
- Law, Philosophy of Law
Evidently, legal orders has evolved in such a way that although some laws retain a basis of general standards like early common law, others rely on the rules that are being acted out by legislature. ...
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Evidently, legal orders has evolved in such a way that although some laws retain a basis of general standards like early common law, others rely on the rules that are being acted out by legislature. A debate exists, however, about the right balance between an open discretion and detailed rules that are easy for both the law-makers and law-abiders to understand. Various sets of social relations help provide the normative structure of law as some rules like those concerning contract and property possess clarity while the rules concerning the regulation of certain transactions adapt more discretion. In conducting a careful study of the normative structure of law, one must take into consideration the social formations involved. Legal theory and law-and-society are different because of the lack of qualities of a fully modern system.Less
Evidently, legal orders has evolved in such a way that although some laws retain a basis of general standards like early common law, others rely on the rules that are being acted out by legislature. A debate exists, however, about the right balance between an open discretion and detailed rules that are easy for both the law-makers and law-abiders to understand. Various sets of social relations help provide the normative structure of law as some rules like those concerning contract and property possess clarity while the rules concerning the regulation of certain transactions adapt more discretion. In conducting a careful study of the normative structure of law, one must take into consideration the social formations involved. Legal theory and law-and-society are different because of the lack of qualities of a fully modern system.
Stilt Talar
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199602438
- eISBN:
- 9780191729348
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199602438.003.0001
- Subject:
- Law, Legal History
The Introduction places the book in the context of the larger “law and society” literature and explains why the legal official at the center of the book, the muhtasib, is an ideal point of entry into ...
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The Introduction places the book in the context of the larger “law and society” literature and explains why the legal official at the center of the book, the muhtasib, is an ideal point of entry into the practice of law in Mamluk Egypt. The Introduction explains how this book follows in the line of studies that have used court records from historical Muslim societies and those that have used fatwas, the legal opinions of muftis. It discusses the sources used in the book and presents the book’s methodology, and then outlines the contents of the remaining chapters.Less
The Introduction places the book in the context of the larger “law and society” literature and explains why the legal official at the center of the book, the muhtasib, is an ideal point of entry into the practice of law in Mamluk Egypt. The Introduction explains how this book follows in the line of studies that have used court records from historical Muslim societies and those that have used fatwas, the legal opinions of muftis. It discusses the sources used in the book and presents the book’s methodology, and then outlines the contents of the remaining chapters.
