In the last post I argued that analytic jurisprudence lacks the intellectual resources for dealing with the current state of law in the emerging information society. I wrote a more complete treatment of that position in my essay, “Jurisprudence and Structural Realism,” which you can get here. In this post I want to continue discussing the foundational presuppositions of legal theory. In particular, I want to consider how legal theories treat the social and historical contexts in which the law exists.
I believe that the central deficiency in analytic jurisprudence is its methodology, which seeks to reduce law to the information of its semantic expression. For these philosophers, law is only semantic information. It is simply grammar and syntax. Indeed if Leiter’s naturalism (rooted in Quine’s coherentism) is to be believed, it is words “all the way down.” Following Quine, Leiter argues that human knowledge is essentially semantic in nature, and therefore theoretical accounts of law must consider nothing more than the semantic nature of the law. For this reason, analytic legal philosophers have tended to view law apart from its social and historical context. Since they seek a general theory of law that can be applied across cultures and throughout time, the particularities of culture and the historical construction of law are not relevant to their theoretical projects.
Contrast this with what one finds in Anthropology or Sociology of Law. The anthropologist, Clifford Geertz, is often quoted for his statement that “law is a way of imagining the real.” And that as a cultural form, the interpretation of law requires “thick description.” Similarly, sociologists have noted the “gap” between the reductive accounts of law and those that seek greater cultural/historical context. Notable among these sociologists is Brian Z. Tamanaha, whose “A Realistic Theory of Law” develops a contemporary historical theory (drawing from thinkers as diverse as Montesquieu and Savigny) that seeks to understand law in the context of historical and cultural contingencies. Needless to say, the relation between Tamanaha and the analytic jurisprudes hasn’t always been cordial.
One of the implications of living in the Information Age is the awareness of the ubiquity of information. It’s everywhere, even when we wish it weren’t. Information creates a context in which we live our lives, and law is part of that information environment. One way to think about the history and social relations that Tamanaha identifies is to consider the location of law in the information environment. Law is semantic information. But it is also influenced by many other types of informational systems. This is the meaning of Tamanaha’s theory—that law cannot be understood apart from the informational environment in which it is located.