Document Type

Article

Publication Date

2008

Abstract

This is an essay on Brian Z. Tamanaha's Law as a Means to an End: Threat to the Rule of Law (2006).

For all but the most unflinching consequentialist, "instrumentalism" tends to draw mixed reviews. So it does from Brian Tamanaha. His book, Law as a Means to an End: Threat to the Rule of Law, documents with measured diffidence the ascendancy and current reign of "legal instrumentalism," so entrenched an understanding of law that it is "taken for granted in the United States, almost a part of the air we breathe." Professor Tamanaha shows that in our legal theorizing, our approaches to legal education, our understanding of legal practice, and our perception of judges, legislators, and legal administrators, law is widely believed to be "an empty vessel" that is "open with respect to content and ends." Often, Tamanaha seems to make the stronger claim that noninstrumental views of law strike our modern sensibilities as unreasonable.

Should this be of any concern? While Tamanaha intends this book as a warning against the peril that creeping legal instrumentalism poses for the rule of law, his criticism is tempered. On the one hand, he believes that we have already traveled a fair distance toward a purely instrumental view of law and that "intellectual developments and the logic of the situation portend a worsening ... nightmarish scenario." He aims to offer a "diagnosis of our worrisome time." On the other hand, he cautions the reader not to take his admonitions categorically: Instrumental views of law are often sound, and "[m]ore to the point, . . . here to stay"—a fixture of the "modern condition." Non-instrumental conceptions of law trade on "large mythical components" that are "patently implausible" today. Tamanaha concludes on an equivocal note, reaffirming his skepticism about non-instrumental theories and opting for circumspection, if not hopefulness, about the future trajectory of legal instrumentalism.

This tension runs throughout and is understandable; after all, one comes across as either unprincipled or insufferably out of touch by weighing in too heavily on either side. But it often leaves the reader wondering what Tamanaha is about in this book. As a work tracing the development of legal instrumentalism in the United States over the past two centuries in 211 pages, the book is readable, nuanced, and persuasive. But the book's remaining thirty-nine pages are less effective in explaining why Tamanaha seems so fretful about the rule of law or what accounts for the seemingly ineliminable impulse to affirm a non-instrumentalist view in the face of the contrary march of history.

This Essay speculates about an answer to these questions. It argues that one source of resistance to the inexorable progress of legal instrumentalism lies in the belief that the rules that guide our lives deserve our allegiance because they represent a structure of meaning that transcends our own finitude. Our opposition to legal instrumentalism reflects faith in the rule of law, the belief that the law bestows worth and possibility to its adherents beyond their historical context. Faith in the rule of law exists outside of what Mircea Eliade has called "profane" time: the "evanescent duration" of time linked to an individual's own life. Whether the law in fact possesses these spiritual dimensions is unknowable, so there is no way to test this faith. But the value of faith in the rule of law lies in enabling the believer to affirm an ineffable commitment to the law when rational grounds, though often available, are insufficiently powerful to sustain it.

This Essay uses Tamanaha's discussion of the rise of legal instrumentalism as well as his earlier treatment of the rule of law as a framework for examining the nature and strength of belief in the rule of law. It explains the significance of what Tamanaha repeatedly emphasizes is the crucial dangerous inability to believe that the law is anything but an instrument—by reinterpreting it as loss of faith in the rule of law. The Essay concludes by considering briefly whether there is inherent value in faith in the rule of law and what that value might be.

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