Law as a Means to an End: Threat to the Rule of Law.

• Jurisdiction: United States
• Author: Aker, Matthew S.
• Date: 01 January 2007

LAW AS A MEANS TO AN END: THREAT TO THE RULE OF LAW. Law in Context Series. By Brian Z. Tamanaha. Cambridge University Press. 2006. Pp. 268. $29.99.

You must not abandon the ship in a storm because you cannot control the winds. (1)

~St. Thomas More

The view that law is merely a means to an end is now prevalent in American legal culture. From the academy to the practice, the law has come to be viewed in purely instrumental terms and has been relegated to the status of a tool suitable for manipulation by those who have the power to make or interpret it. The daunting task of tracing the demise of an objective understanding of law has been taken up by Professor Brian Z. Tamanaha in his work, Law as a Means to an End. Tamanaha delivers a thoughtful and thorough analysis of where the law began, where it has gone, and where it is headed. Like a good physician diagnosing a troubled patient, Tamanaha meticulously retraces the history of American legal culture, identifies the cause of its symptoms, and offers a diagnosis for going forward.

Tamanaha's analysis proceeds in three parts. In the first part, he traces the devolution of modern jurisprudence from the traditional understanding of law--as a participation in universal norms and the objective character that it derived from this foundation--to the rise of characterizing law in instrumental terms. The second part surveys the contemporary state of the law and the forms of legal practice that have developed from the prevalent understanding of law in instrumental terms. Part three demonstrates the manner in which viewing law as a means to an end threatens the rule of law and delivers a diagnosis of the current state of the American legal culture as well as a prescription to assuage this threat.

The instrumental view of law, simply stated, consists of the view that the law is simply a means to an end. (2) The fundamental characteristic of this approach is that the law lacks essential content and ordered disposition. (3) It is aptly likened by the author to an empty vessel that can be filled with any content whatsoever. (4) In the instrumental theory of law, there are practically no limits to the possible ends to which the law can be directed. (5) Consequently, under this theory, the law becomes a mere instrument that can be manipulated or shaped to pursue the objectives of those who have the authority to make it. (6)

In contrast to this concept is what Tamanaha refers to as the non-instrumental view of law. The fundamental characteristics of law within this view are objectivity and universality. (7) This theory understands the law as having been given: for medieval Europe, given in the form of natural and divine law as well as customary law; and for Great Britain, given by the learned experience of its ancestors and passed down to subsequent generations through the common law. (8) Law, under this theory, possesses a certain autonomy and internal integrity that the instrumental view does not offer. (9) For non-instrumentalists, law is discovered, rather than created, by those in authority. (10)

The story of contemporary legal culture is conveyed through the historical analysis of the last two hundred years. Tamanaha recounts the gradual disintegration of America's inherited non-instrumental understanding of law, coalescing with a loss of belief in the common good of society. At the same time, the narrative traces the collapse of the non-instrumental theory of the nature of law and assesses the consequential rise of the instrumental theory of law. (11) He concludes that the present situation is one that threatens the rule of law in America today.

At its inception, American jurisprudence was imbued with a fundamentally non-instrumental understanding of the law. The common law system, the inherited patrimony, described the law in fundamentally non-instrumental terms. (12) At the same time, the common law was largely considered to be the embodiment of natural rights and natural principles. (13) In this manner, the medieval notion of law as a divine inheritance continued through the middle of the nineteenth century. (14) Overlapping in the nineteenth century and in the early part of the twentieth century was a movement that focused on the law as a science, is This entailed characterizing the law as a proper object of...