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.