Wednesday, October 11, 2006

"The Ordinary Religion of the Law School Classroom"

My previous post on Law as a Means to an End showed how, at the outset of the 1970s, ongoing social and political conflicts affected law students, and contributed, at least for some students, to skeptical views of law and legal reasoning.  In this final post, I will return to the dynamic set out in the initial post: the spread of an instrumental view of law within the legal culture, concomitant with a loss of faith in the social good.  Both of these aspects were in place by the 1970s.

Today an instrumental view of law is so taken-for-granted that it would be odd--redundant and obvious--for anyone to write an article declaring: "Hey, we have an instrumental view of law."  Yet, in the 1960s and 1970s, several such articles said precisely that, identifying it as a novel and worrisome development.  In 1978, Roger Cramton, the Dean of Cornell Law School, observed that an instrumental view of law had become "the ordinary religion of the law school classroom."  He wrote:

Today law tends to be viewed in solely instrumental terms and as lacking values of its own, other than a limited agreement on certain 'process values' thought to be implicit in our democratic way of doing things.  We agree on methods of resolving our disagreements in the public arena, but on little else.  Substantive goals come from the political process or from private interests in the community.  The lawyer's task, in an instrumental approach to law, is to facilitate and manipulate legal processes to advance the interests of the client.

Cramtom, and others at the time, attributed this view of law to the influence of the Legal Realists.

Reading this passage today, it is difficult to appreciate Cramton's alarm.  Of course we view law that way--what other way could there be?  Cramton recognized what we have forgotten, that earlier generations did not teach that law is an empty vessel to be wielded in an instrumental fashion.  Law was thought to have a built in content or integrity; it was comprised of substantive legal principles, not just process values.

To get a sense of this long defunct understanding, and how far we have moved away form it, consider this 1937 description by (Legal Realist) Max Radin of the original purpose of the case method:

The case method was, of course, a method of dialectic.  But its principal purpose was not that of training students in method but of inculcating in their minds certain legal principles which were regarded as valuable.  They constitute the 'right doctrine,' the 'true doctrine' or the 'right theory,' the 'true theory'--no one said the 'orthodox theory'--and if the student remembered the propositions and assumed them to be irrefutable, he had been well taught.

Although we still use the case method today, we (law professors) have inverted its thrust.   No longer are the cases examined to demonstrate the "right" doctrine.  We teach students to attack the analysis, finding weaknesses in the court's reasoning; we ask them to make the best arguments on either side, showing that the case could have gone either way, teaching them that legal rules are tools in the hands of lawyers.  We show students, as Llewellyn put it, "to manipulate the machinery of law."

The second relevant aspect of the period, as I indicated at the outset, was a loss of faith in the social good--either in the belief that a single common good exists, or that we can agree upon it.  This was also a theme in the legal literature of the 1970s.  Perhaps the most prominent example of this was Arthur Leff's "Unspeakable Ethics, Unnatural Law" article in the 1979 Duke Law Journal:

There is no such thing as an unchallangeable evaluative system.  There is no way to prove one ethical or legal system superior to any other, unless at some point an evaluator is asserted to have the final, uncontradictable, unexaminable word.

Leff's essay memorably ended with a plea: "God help us."

Today, no one would think to write an article making Leff's observations--just as no one to think to write an article announcing that we have an instrumental view of law--because the fact of intractable value disputes is now taken for granted.

Let me briefly recapitulate the core points made in this series of posts: by the1960s and 1970s, a purely instrumental view of law had taken over the legal academy; society was sharply divided by social and political conflict; people had lost faith in the idea of the social good, or that it can be agreed upon; and there was a great deal of skepticism about the government and about law.

Law as a Means to an End traces out the consequences and implications of these views in the contemporary legal culture, examining, in turn, theories of law, the practice of law, cause litigation, judicial appointments and judging, legislation and administrative regulation.  The final part of the book elaborates on ways in which these various trends threaten to corrode the rule of law.

One final note before leaving off: More than a few readers of these posts will object that law has always been seen and utilized instrumentally, regardless of whether the legal elite or lawyers previously claimed otherwise.  This reaction is correct, as I also show in the book.  But it is a mistake to conclude therefrom that the shift to a pervasively instrumental view of law within the legal culture has had no real consequences.  A radical shift in prevailing ideas inevitably has implications for action.

My thanks, again, to Dan Markel and the PrawsfBlawg crew for allowing me to tread on your turf.

Posted by Brian Tamanaha on October 11, 2006 at 05:19 PM in Tamanaha | Permalink | Comments (0) | TrackBack

Monday, October 09, 2006

Conflict in the Legal Academy, circa 1969-70, with Implications for Today

The first PrawfsBlawg post on Law as a Means to an End identified the key modern dynamic in the spread of an instrumental view of law within the legal culture, concomitant with a loss of faith in the social good.  These two components became firmly entrenched in the legal academy in the 1960s and 1970s, as I will indicate in the third post (coming this Wednesday).  But first, it is necessary to recognize the searing social and political events of this pivotal period, and their immediate effect on attitudes toward law.  Take a look at these extraordinary passages, excerpted from the "With the Editors" statements of the 1969-70 Harvard Law Review:

On the night of April 15, a conflagration raged between the police and demonstrators in Harvard Square.  Its destructive effects, however, spread far beyond the original participants and area.  Stationing themselves just a block from Gannett House [the home of the law review], scores of helmeted police cordoned off the Square from the north.  Many students stood in small groups outside the police barricade, silently watching and wondering about the events occurring a few blocks away.  Suddenly, and without any observable provocation from the bystanders, the police advanced, soon running and swinging their riot clubs wildly.  Students fled from the charging policemen and sought refuge in Gannett House or other nearby buildings.  Others were less fortunate.  An officer of the Review, trying to avoid the onrushing police, had his key in the lock of the Gannett House door when he was clubbed from behind by one of the two officers running by.  Neither stopped; the blow on the head was merely a gratuitous gesture by the guardians of the law.

...Police here, as in so many other cities, added recruits to the radical cause by their misguided attempts to bludgeon that very ideology.

The editorial statement from a another issue of the same volume remarked upon the "invasion of Cambodia and the official murders at Kent State, Jackson State, and elsewhere..."  In yet another issue, the editors linked ongoing events to their increasingly skeptical views of law:

At a time when so many venerable traditions are being skeptically scrutinized, if not harshly attacked, it is hardly surprising that legal reasoning is also attracting increasing criticism.  Growing numbers of students are questioning whether lawyer-like logic and analysis are indeed proper tools for contemporary problem solving.  Such students believe that the Law School and the method of analysis it teaches deliberately obscure rather than clarify relevant issues.  In assessing legal logic, at least one disgruntled student has termed it a "cerebral trickbag," which is presumably manipulated by the malevolent masters of the Establishment.

It is true that what passes for logic in some judicial opinions (and in many classrooms) is a little more than finely spun sophistry.  It is also important to note that pure logic does not offer a solution to all problems.  In reaching a great many solutions, a value judgment or aesthetic choice becomes inevitable, no matter how much the decision-maker may isolate and clarify the relevant issues by means of  careful analysis.  Indeed, in some cases the 'logical' solution may even be inappropriate because certain emotional or other supposedly illogical factors are proper considerations.

The preceding statements must be read as they were meant at the time--as an explicit repudiation of the legal process school, which was the dominant legal theory of that generation.  Harvard Law School was the home of the legal process school, developed out of the work of Felix Frankfurter, Lon Fuller, and, especially, The Legal Process course materials compiled by Henry Hart and Albert Sacks.

Legal process thinkers asserted that the role of the courts is, as Hart put it, "to be a voice of reason;" judging involves the "reasoned elaboration" of enduring legal principles.  The judicial development of these principles was described by Fuller as "the law 'working itself pure."  Courts were designated by the legal process school as collaborators with legislators in the development and rationalization of the law.  When interpreting legislation, judges were instructed to presume that "the legislature was made up of reasonable persons pursuing reasonable purposes reasonably."

This was the mainstream view of law in the legal academy throughout the 1950s and in to the 1960s.   The legal process account of judging was plausible in the 1950s because it implicitly relied upon the assumed happy consensus of this booming time--what Daniel Bell labeled "the apathy of the fat fifties"--a consensus that ignored the plight of black Americans, and was soon to be shattered by civil rights protests and anti-war protests.

The student editors of the law review were especially troubled by the fact that the legal process school, with its emphasis on reason and "neutral principles," implicitly and explicitly criticized the Warren Court as unprincipled and result-oriented.  The editors (in another Editorial statement) protested that the "compelling logic of the Frankfurter-Hart school has often appeard to impose a deadening hand..."  The Editors left no doubt about their sympathies, writing on the first page of the volume (on the occasion of his retirement): "To Chief Justice Warren, who with courage and compassion led a reform of the law while the other branches of government delayed, the editors respectfully dedicate this issue."

At the very outset of the 1970s, law students across the nation--and keep in mind that Harvard was not the most radical campus at the time--were skeptical of law and legal reasoning.   Many graduates from top schools--including 7 editors from the volume that produced the above quotes--became law professors.   Seminal works in law and economics and in Critical Legal Studies, both characterized by a deep skepticism of law and legal reasoning, were produced early in the decade, setting the stage for later developments in legal theory. 

Posted by Brian Tamanaha on October 9, 2006 at 03:40 PM in Tamanaha | Permalink | Comments (6) | TrackBack

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 | Comments (5) | TrackBack