2) TUTO Brian Tamanaha PDF

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Question 1 : Briefly explain what is Brian Tamanaha’s Realistic Socio Legal Theory of LawBrian TamanahaRealistic Socio-Legal Theory● Tamanaha establishes a book entitled “Realistic-Socio Legal: Pragmatism and A Social Theory of Law”. In his book, he identifies and develops foundations for social sci...

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Question 1 : Briefly explain what is Brian Tamanaha’s Realistic Socio Legal Theory of Law Brian Tamanaha Realistic Socio-Legal Theory ● Tamanaha establishes a book entitled “Realistic-Socio Legal: Pragmatism and A Social Theory of Law”. In his book, he identifies and develops foundations for social scientific study of law. ● Tamaha’s view is a favoured view of the American Court because unlike Pound, Tamanaha presents a more holistic vision of law within society. ● Tamanaha says there’s no definition but law is a concept. According to him, law can be anything and there’s no real definition of law. ● According to Tamanaha, law is whatever we attached the label ‘law’ to be. As long as society accepts the it, it becomes law. ● Tamanaha approach is known as philosophical pragmatism in order to establish an epistemological foundation (theory of knowledge). ● He combines pragmatism with philosophy. His theories are based on social sciences but he gives methodological theories which uses both behaviourism and interpretism. This theory is support by the CLS otherwise known as post-modernist. ● Tamanaha insists that law should not be defined in any fixed manner but law should be subject to investigation and proof. Law should be proven through a scientific method. Law is a thoroughly cultural construct which lacks any universal essential nature. ● In order to produce a good law, law should be subject to investigation (behavior of human) and proof. ● Problem with jurists is that they tend to assume without actually proving.

● Law is more of a social phenomenon, it is a social construct. Thus, to understand law, you need to analyze and discuss the social context. ● Law has many purposes and each one will take its own significance according to the context. (ie; private law, public law, contract law, IP law). Shariah law exists because Malaysia has a lot of muslims. Native law is also recognized as law to cater to natives. The importance is not diminished and it is not of lesser importance. This shows social construct. ● Law is multi-faceted, multi-constructed ● There should be a one size fits all concept of law. 2. State the methodology that Tamanaha uses in his theory (10 marks) Tamanaha’s realistic socio-legal theory jurisprudence is shown to be the new form of sociological jurisprudence which is found in the late 1990s. Tamanaha’s book entitled Realistic Socio-Legal: Pragmatism and a social theory of law (1997) identifies and develops foundations for social scientific study of law. Therefore, this means that the law is looked through a scientific manner. It is seen that the legal theory of law whereby the epistemological and methodical foundation for the social scientific study of law is found in philosophical pragmatism (William James), philosophy of social science (John Maynard Keynes), legal sociology (Max Weber), political science (Robert A. Dahl) and legal anthropology. Although they represent their own method or ideas, it is found that it is similar to Tamanaha’s view towards law whereby he wants the law to be seen through a scientific manner and not merely theory.

His approach undertook philosophical pragmatism in order to establish an epistemological foundation (theory of knowledge) which specifies the nature of social

science and its knowledge claims, and a methodological foundation which uses both behaviourism and interpretivism. Behaviourists concentrate on the behavior of the participants and are not concerned about their feelings and perceptions. Using this approach, Behaviourists are seeking to accomplish the aim by creating rules that might clarify and anticipate the behavior of people in other circumstances. The Interpretivist, on the other hand, reflects on the thought of the performers and tries to include the correct explanations that lead to that. Philosophical pragmatism is the behaviour and interpretivism of someone towards something. This is based on how the law will be interpreted by the society and how the society will behave when they are facing that particular law, a study of the society itself. This is based on how the study of the society itself and how the law will change the behaviour of the society. However, behaviourism and interpretivism can be interpreted differently. It is clearly shown that Tamanaha dislikes the critical legal studies movement which led him to place his work in contrast with that of the critical legal studies movement. Moreover, Tamanaha focuses on the concept of epistemology where he focuses on how people think. As stated earlier he dislikes the concept of law and theory as two separate identities. Thus, his theory specifies an investigation of how the society shaped the law from their daily life, culture and religion. He believes law cannot have one single definition as each society is different from another. Thus, it will be irrelevant as law must be related with society not merely theory. The law should achieve one's objectives without depriving others of their rights. His belief is partly similar to Roscoe Pound’s theory of law.

Tamanaha dislikes critical studies as he believes that the law is the key within social phenomena which need to be analysed thus, proper conceptual theory shall be provided as guidelines. It exists theoretically but not in reality or practice. Although he does not believe in the existence of the concept of law, he supported and accepted the idea but

tended to part on the proposition of “central case of law” which according to Tamanaha, central case of law is the product of governance power by a particular state. As Tamanaha does not believe in a centralized definition of law like the postmodernist, he does not want to define the characteristics of law and want to keep the definition open, to how the society thinks it is. Law cannot be captured in a single definition. Hence the reason why he focuses on behaviorism and interpretivism. Question

3

Outline

Tamanaha's

concept

of

law

-Tamanaha objected the standard conceptual jurisprudence which that law and its theory stands

alone

than

others.

- To him, formulations of law developed by previous theorists encapsulate a familiar aspect of law,

but not any

single concept of law

has

gained consensus

support.

- He believes that legal theory, especially socio-legal studies are dependent to each other, in which

one

may

learn

from

another

and

vice

versa.

- In addition, he asserted that every branches of sociological legal studies should be subjected to investigation and statistical proof or evidence, rather than assumption that such law works efficient

and

effectively.

- Simply, he opines that law should not be defined in any fixed manner, ut subjected to evidence

or

proof.

- His objections to standard conceptual jurisprudence can be seen in the following: "What law is and what law does, cannot be captured in any single scientific concept. The project to devise a scientific concept of law was based upon a misguided belief that law comprises a fundamental category. To the contrary law is thorough, a cultural construct, lacking -

In

any other

words,

universal law

is

whatever

essential we

attach

the

nature.” label

law

to.

- Tamanaha denied the existence on the ground that; the law is the key within social phenomenon which need to be understood, analysed and discuss, which could not begin nor be carried far without conceptual analysis. It exists theoretically but not in reality or practice. - Law is merely a concept applied a variety of multifaceted phenomena such as natural law, international law, primitive law, religious law, customary law, state law, folk law and

indigenous

law.

- The test is, if society accepts it as law, then it is law. As stated above, social customs or convention is law to a certain society because it must be made and applied by society. - As an example, he used international law which has its own integrity and has been functioning as a form of law for at least two centuries but which remains under traditional conceptual

analysis

a

"borderline

form

of

law".

- However, although Tamanaha denies that there is a concept of law, he still does support and accept the idea but tend to part on the proposition of “central case of law”. - The central case of law, according to Tamanaha, is just the product of the governance power by

the

particular

State.

- In his book On the Rule of Law, Tamanaha criticized the definitions of law by previous scholars Plato (who thought law as a divine order consistent with the Good) and Aristotle (who thought that an honest government will lead to the creation of just law). - He criticized them by saying that their ideology posits that the best government is born out of the ruling of the best man, instead of ruling by the rule of law. He also added that Plato & Aristotle made laws with the elites in their mind, as they felt that the best man to rule comes from the supreme and elites. He thought that this is a ‘second-best solution’ and only shows human

weaknesses

- He also criticized the relation between the Pope and the law during the medieval times. He said that while the Popes were meant as church heads in the beginning, they slowly imposed superiority of themselves above kings, emperors and princes in the name of Christianity. Tamanaha blamed the ultimate superiority of the Popes which was founded on Christianity, to

have

led

to

the

downfall

of

military

defences

of

the

kingdoms

- Besides that, Tamanaha showed support to liberalism, as he wrote that everyone deserves to be equally treated with respect and dignity; and that equality within liberalism means that citizens

have

equal

political

rights

and

entitlement

to

the

law

- He suggested four themes of liberty, in which all four co-exist together. - Firstly the individual is both the ruler and the ruled as they are free to rule their own selves - Secondly, the government is only entitled to act in accordance with pre-existing laws as the citizens are only bound by the law and not the arbitrary power of a government officer - Thirdly, the government cannot violate the realm of personal autonomy or personal liberty

as he proposed that individuals are entitled to integrity of body and mind free from government

interferences

- Finally, freedom is properly upheld when the government practises the concept of separation of power for this guarantees an effective division of power

Question: State Tamanaha’s criteria of usefulness of the concept of law. (10 marks)

-Tamanaha’s Evaluative Criteria for Conceptualisation of law

1)Concept must be coherent or analytically sound. It means that the law should not contain any internal contradictions. If a law that has been created has so many contradictions, this criteria will not meet. Coherent here basically means logical and consistent in the sense that the law should be. If law turns out to be inconsistent, it creates a non stable society where people would have no respect for the law hence riots could happen. Whereas when law is illogical, obedience towards the law would be unachievable. A law needs to exist where it stands as stable to cater to regulating the needs of the society to prevent mishaps. For example: actus reus and mens rea are elements of a crime in which both are elements must be satisfied to make the accused guilty. Actus reus is an act or conduct of a crime while mens rea refers to his criminal intent or has a guilty mind. The rationale: The guilty intention must correspond or have a connection with the conduct of the crime. Thus, if someone acts without a guilty mind, he will not be found guilty.

2) Concept must be consistent Such law must be fit or adequate to the reality or phenomena or idea it purports to represent or define. If law the was aimed to solve a problem in a society, then the law must be appropriate with what the parliament intended to solve Law must “fit” or act as adequate to the reality of a society in the sense that it must be consistent with time where it needs to adapt to the changes in society.

However, even so, the law should not change so rapidly in which it would confuse the society. For example: the Sedition Act was aimed in preserving Malaysia’s societal harmony and public order as well as to protect the position of Malay rulers. Therefore, when applying the act, the application must be consistent with what the aim of the act is.

3) Concept must have a used value The law should be able to help enhance, allow or be understandable in terms of value to fulfill objectives. When making law with a used value, it must be based on particular society or activity. It cannot be based on general terms. In the case where the activity is the social scientific study of legal phenomena, the criteria to be included are whether the information can be relied on and suitable with the legal phenomena, whether it fits within a meaningful framework of interesting questions about law and whether it increases our ability to comprehend, describe or analyse the legal practise for the our interests and to make a better law. For example, in the case of Ooi Kean Thong & Siow Ai Wei v PP, two young couples were caught kissing and hugging in the public at KLCC and have been charged under section 8(1) of the Parks(Federal Territory) By-laws 1981. The court held that the right of the appellants to express themselves does not extend to a public act of gross indecency. Thus, kissing and hugging in public can be constituted as behaving in a disorderly manner and thus alleged by DBKL to be an offence.

Question 5: State Tamanaha’s criteria of usefulness of the concept of law.(10 marks) Tamanaha talks about socio legal studies. This is an area of law that does not have any theories as such, the law is treated as separate entity and legal system is treated as separate entity. The reforms that were suggested under realistic socio legal studies is looking at behavior of instituaiton

rather

than

understand

legal

studies.

He insisted that law should not be defined in ways that assumes sociological connections. But should be subject to investigation and proof. He states that what law is, and law what does

cannot be captured in any single scientific concept. He wants to have one scientific concept of law which he believes can only be done through proof. He does not believe we should have one centralized

definition

of

law

like

postmodernist.

As far as criteria of usefulness are concerned, Tamanaha insists this cannot be answered in abstract or general terms: it is the function of the particular activity at hand. According to Tamanaha, the activity is the social scientific study of legal phenomena the criteria include the question as to whether the information is reliable and fits the fact of the matter about legal phenomena. This because judges may judge a case depending on the race, educational or economical

background

of

a

person.

Next, on the issue of whether it fits within a meaningful framework of interesting questions about law, for the community of socio-legal investigators. This means that it must have a sense of helping and answering the questions that fits the community itself. Lastly, on the issue of whether it enhances our ability to observe, understand, explain, describe, analyse, prescribe, critique and change legal practices to serve our interests, to make law better. What those interests might be, what it means to make law "better" cannot be determined by pragmatism itself. That determination must be made in the social arena by social actors as a matter of substantive policy choices. This clearly shows that data is more important than concept. Law will not be relevant without scientific credibility. However, law cannot be dictated by legal sociology. Socio legal studies is inferiors to law. Law is seen as a social practice open to suggestions to social scientific study, and that legal theory and socio-legal theory have a lot to learn from each other....