Saturday, December 16, 2006

Tamanaha: Law as a Means to an End

Brian Tamanaha has a new SSRN paper, How an Instrumental View of Law Corrodes the Rule of Law, but his real purpose is to draw readers to the fuller account in his new book, getting quite a bit of attention: Law as a Means to an End: Threat to the Rule of Law. Much of Tamanaha's work has been in jurisprudence, but this new work is of keen interest to legal historians.

Here's the book description:
The contemporary U.S. legal culture is marked by ubiquitous battles among various groups attempting to seize control of the law and wield it against others in pursuit of their particular agenda. This battle takes place in administrative, legislative, and judicial arenas at both the state and federal levels. This book identifies the underlying source of these battles in the spread of the instrumental view of law - the idea that law is purely a means to an end - in a context of sharp disagreement over the social good. It traces the rise of the instrumental view of law in the course of the past two centuries, then demonstrates the pervasiveness of this view of law and its implications within the contemporary legal culture, and ends by showing the various ways in which seeing law in purely instrumental terms threatens to corrode the rule of law.

And leading American legal historian Robert Gordon had this to say about it:
"Brian Tamanaha sounds a firebell in the night. He shows how the most progressive modern approaches to law, by undermining beliefs in its objectivity and formal rationality, and its rootedness in natural or customary standards of right conduct, have fatally undermined its claims to restrain power-seeking or serve the common good. Law is now seen simply as an instrument -- not as a limit on greed and power, but a means by which interests pursue their own selfish ends. And it's not only interest-groups and their lawyers, but judges and jurists, who have signed on to an instrumentalism that challenges the very ideas of the rule of law and the public interest. Tamanaha is not a nostalgic romantic. He does not think the old days can or should be recovered. He does not tell us what to do. But he illuminates our predicament with succinct history, clear-headed observation, and unflinchingly bleak analysis."

Tamanaha blogged about the book at PrawfsBlog. And Tamanaha is a regular blogger at Balkinization.