Synopses & Reviews
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.
Review
"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."
Lawrence Solum, John E. Cribbet Professor of Law, University of Illinois College of Law"The great scholar Grant Gilmore once asked in the title of a fascinating book, 'Is Contract Dead?' and went on to answer, 'yes.' Brian Tamanaha does him one better. In this book he asks, 'Is Law Dead?' His answer: 'almost.' Law, he reports, is in danger of succumbing to instrumentalism and as such losing its vitality. Much of modern legal scholarship seeks to make law a branch of applied economics. This book pushes against that movement, as well as many other related realistmovements. Whether one agrees or disagrees with Tamanaha, he or she will be wiser after having read this fine book."
Malcolm M. Feeley, Claire Sanders Clements Dean's Professor, Boalt Hall School of Law, University of California at Berkeley"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."
Robert W. Gordon, Chancellor Kent Professor of Law and Legal History, Yale University
Synopsis
This book identifies the problems with viewing law as a means to an end.
Synopsis
Drawing upon legal history, legal theory, and legal sociology, this book presents an intellectual history of the U.S. legal culture which elaborates on the various developments that have led to and structure the present worrisome legal-political situation.
About the Author
Brian Z. Tamanaha is the Chief Judge Benjamin N. Cardozo Professor of Law at St. John's University School of Law. He delivered the inaugural Montesquieu Lecture (2004) at the University of Tilburg. He is the author of On the Rule of Law (Cambridge 2004), Realistic Socio-Legal Theory (Oxford 1997), and A General Jurisprudence of Law and Society (Oxford 2001) which won the Herbert Jacob Book Prize in 2001. He has published many articles and is the Associate Editor of Law and Society Review.
Table of Contents
Introduction; Part I. The Spread of Legal Instrumentalism: 1. Non-instrumental views of law; 2. Changing society and common law in the nineteenth century; 3. Nineteenth century legislation and legal profession; 4. Instrumentalism of the legal realists; 5. Twentieth century Supreme Court instrumentalism; Part II. Contemporary Legal Instrumentalism: 6. Instrumentalism in legal academia in the 1970s; 7. Instrumentalism in theories of law; 8. Instrumentalism in the legal profession; 9. Instrumentalism of cause litigation; 10. Instrumentalism and the judiciary; 11. Instrumentalism in legislation and administration; Part III. Corroding the Rule of Law: 12. Collapse of higher law, deterioration of common good; 13. The threat to legality; Epilogue.