The Data of Jurisprudence

Gerald J. Postema

In contemporary jurisprudential writing, there is no lack of attention to method. Although I have participated in this activity, I have reservations about it, partly because it tends to be narcissistic, but more because it can encourage an unwelcome form of intellectual-boundary policing. Despite these reservations, I will offer in this essay some reflections on method in jurisprudence, reflections stirred by Professor Tamanaha’s impressive new book, A Realistic Theory of Law. Although my remarks will be critical at points, they are meant to build on and elaborate proposals Tamanaha makes in his book, and are offered in the hope of expanding jurisprudential efforts and effacing intellectual boundaries, rather than defining new ones or policing old ones.

William Galbraith Miller, in a remarkable, albeit puzzling, book written at the turn of the twentieth century, anticipated a central methodological
theme of Tamanaha’s work. He wrote, “Our primary object in Jurisprudence . . . may be to enumerate, classify, and account for the various shapes which
the matter under investigation has assumed.” He further noted, “Common sense rebels against the restriction of jurisprudence to the anatomy of the skeleton of law in forms, and strives continually to deal with the physiology of society.”

Tamanaha argues vigorously and persuasively for the revival of a genuinely historical and sociological dimension of jurisprudence. He develops and defends such a theory that locates law in the living, constantly changing environment of human societies. In the first part of this essay, I will argue for an understanding of the enterprise of jurisprudence that is even more ambitious than Tamanaha’s, but one that finds a secure place for his historical and social theory. In the second section of this essay, I will examine the methodology of Tamanaha’s social-legal theory, offering suggestions aimed at further elaborating and enriching it.