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Friday, October 06, 2006

Law as a Means to an End

I would like to thank Dan Markel for this opportunity to write a few PrawfsBlawg posts on my new book, Law as a Means to an End: Threat to the Rule of Law.  Although there are many blogs by and for law professors, this is clearly the blog for the up-and-coming generation.  The book should be especially interesting for this group--I hope--because it presents an intellectual history that helps diagnose the increasingly dysfunctional condition of our current legal culture.

Rather than be subtle, I will attempt to pique interest in the book by beginning with a blatant resort to the authority of a renowned blogger and legal theorist, the estimable (and generous) Larry Solum, who provided the following blurb for the book:

Brian Tamanaha's "Law as a Means to an End" is something very rare--a book that has the potential to change thinking about the law in fundamental ways.  The book accomplishes three substantial tasks with admirable brevity, erudition, and clarity.  First, it traces the history of "legal instrumentalism" in Nineteenth and Twentieth century jurisprudence and legal practice--a compelling story that illuminates the origins of our most basic assumptions about law.  Second, it traces the pervasive influence of instrumentalist thinking in contemporary legal thought--acutely diagnosing the intellectual underpinnings of phenomena as diverse as "cause lawyering" and the "law and economics" movement in the legal academy.  Third, it makes a compelling argument that the rise of instrumentalism has a fundamentally corrosive effect on the rule of law.  This is not just an important book--it is THE important book of legal theory for this decade.  "Law as a Means to an End" is superb.

In this first post, I will articulate the core theme of the book.

Law has not always been understood in consummately instrumental terms, that is, purely as a means to an end.  Up through the nineteenth century, the law was portrayed by the legal elite (and more widely) to have a built in content and integrity, comprised of natural principles, or of immanent community norms, or of the logical and inherent requirements of objective legal concepts.  Law was not thought to be an empty vessel that could be declared at will or filled in with any content whatsoever.

Beginning with Bentham and von Jhering, and taken further by Holmes, Pound, and the Legal Realists, reformers challenged this longstanding view, arguing that law is an instrument to serve the social good

In the course of the twentieth century, this view took hold, but with a twist.  The instrumental view of law swept the legal culture, while people lost faith in the notion of the social good--either no longer believing that is there is a common social good, or that we can ever agree on what it is.

A pervasively held instrumental view of law in a context of sharp group-based disagreement leads to a Hobbesean struggle of all-against-all within the legal order and over the legal apparatus itself.  In one arena after another, from the practice of law, to judges and judging, to legislation and administration, individuals and groups attempt to seize control of the law and to use it as an instrument to advance their own or their groups' agendas or interests--wielding the law as a coercive weapon against others.

The book centers on this dynamic and on its implications for the rule of law.  In the next post, I will say a bit about the 1960s and 1970s, providing a few fascinating quotes from this period that help illuminate the situation today.

Posted by Brian Tamanaha on October 6, 2006 at 09:32 AM in Tamanaha | Permalink

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Brian,

I'm delighted to see you here. I think I wrote to you about this before, but I just wanted to clarify something: are you identifying the instrumental view of law with the same legal/cultural/political processes that might be implicated in or responsible for the loss of faith in a common good? Or are these historically and sociologically distinct phenomena that eventually rely on reciprocating feedback loops, accelerating or exacerbating their troubling features and consequences (hence now of a piece, systematically speaking)?

Posted by: Patrick S. O'Donnell | Oct 6, 2006 12:21:44 PM

Patrick,

Thanks for your comment. The rise of the instrumental view of law was a piece of the cluster of ideas you identify, which are also linked to the loss of faith in the common good. These ideas--which I trace back to the Enlightenment--were initially thought to be complementary, but it didn't work out that way. This raises another of the themes of the book: identifying a series of situations in which the good intentions of reformers have been frustrated, or have led to undesired and unanticipated consequences.

Brian

Posted by: Brian Tamanaha | Oct 6, 2006 1:24:52 PM

Brian,

I look forward to reading the book, and am happy to see it's available in paperback. Alas, I'm reminded that I'm old enough to be the (figurative) father of 'the up-and-coming generation' you identify with this blog!

Best wishes,
Patrick

Posted by: Patrick S. O'Donnell | Oct 6, 2006 1:53:37 PM

Brian,

I am a *major* fan of your _A General Jurisprudence of Law and Society_ and very much looking forward to this book, which I will read with tremendous interest. One thing I'll be curious to see is how much (or little) mention British Idealists will receive. They are widely criticized for making just the move you claim (above) that law has moved away from: i.e., from a view to the good towards a means to an end. Yet, there are many resources in these major figures of philosophy at this time (Green, Bradley, Bosanquet, Collingwood, Mackenzie, Pringle-Pattison, and others) that offer us resources to advance the so-called rival view. In fact, I just came back from Edinburgh where colleagues noted that the Idealists were too "means to an end" for their liking---they wanted a view of the good! (The circle of philosophy...just when I thought I had saved the Idealists.) Even if absent, I might be keen to get in touch with you after reading the book to discuss some of the intellectual history of the 19th C in particular which I find absolutely fascinating stuff. Congrats on the new book. You are a tremendous talent.

Posted by: Thom Brooks | Oct 11, 2006 4:05:40 PM

Brian, if you have time, give me a call. We have alot to talk about! Michael Levine
Portland, Oregon
503-546-3927

Posted by: Michael R. Levine | Oct 20, 2006 10:54:31 AM

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