A New Historical Jurisprudence?

In his provocative new book, A Realistic Theory of Law, Brian Tamanaha offers a variety of insightful analyses and conclusions that may shake up analytical jurisprudence for years to come. In the course of a relatively short and highly accessible work, Tamanaha challenges conceptual theories of law and conventional understandings of international law, clarifies important aspects of legal pluralism, and provides a novel, genealogical approach to thinking about the nature of law. It would take a whole other book (and likely a much longer one) to give due consideration to all of these topics, so the focus of this commentary must necessarily be much narrower. In this article, I focus on Tamanaha’s argument for a greater appreciation of historical jurisprudence, and his advocacy for a variation of it, his presentation of this alternative as a necessary supplement to the current widely-accepted understandings of law. To look at these topics, we need to follow Tamanaha’s book by first considering what the original historical jurisprudence offered and what a revived version might add to contemporary debates. Part I offers a brief overview of historical jurisprudence. Part II explores Tamanaha’s views of, and claims for, a revived historical jurisprudence. Part III looks at some problems in evaluating historical jurisprudence. Finally, Part IV considers what it means for history to inform legal theory, before concluding