Fall 2009-#11. The Threat to the Rule of Law A Critique of Instrumentalism.

Author:Reviewed by Elizabeth R. Wohl, Esq.

Vermont Bar Journal


Fall 2009-#11.

The Threat to the Rule of Law A Critique of Instrumentalism

THE VERMONT BAR JOURNALVolume 35, No. 3Fall 2009The Threat to the Rule of Law A Critique of InstrumentalismReviewed by Elizabeth R. Wohl, Esq.ProfessorTamanaha's dense little book will change the way you think about what you do. In 268 pages, the author details the major shifts in our understanding of the law's role in society, and then argues that the instrumental approach to the law has become pervasive throughout our legal culture and threatens to undermine the rule of law.

In the first part of the book. Professor Tamanaha carefully traces the development of Western thought about the law from the beginning of the nineteenth century to the present. He contrasts the contemporary notion that law is an instrument, made and used for its manipulators'purposes (instrumentalism) with the earlier idea that there are absolute truths in the law which judges and legal scholars may divine through careful study (non-instrumentalism). He does not advocate, or even romanticize, the non-instrumental, or natural law, view, but he contends that its diametric opposite, the idea of law as primarily a tool for achieving a client's aim, is the single most corrosive and dangerous factor in our current legal culture.

Interestingly, he targets "cause" or "issue-oriented" lawyers equally with private practitioners. Whether these battles are fought in the courts or the legislature, the "victories" are only as strong as the majority that decides them. He argues that when a lawyer advocates a cause in order to impose one segment of society's views on all of society, the loser in the long run is the law itself: demoted from being an impartial arbiter of individual disputes to a weapon used by one faction to dominate another, regardless of how admirable the social goals of either segment may be.

The very fact that we care about the political affiliations of Supreme Court justices illustrates how pervasively this instrumental approach to the law has taken hold. The author warns that when we care more about the political affiliation of a judge than her experience, when we believe that we must get "a liberal" or "a conservative" judge on the bench, we have already surrendered the...

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