In LAW AS A MEANS TO AN END: THREAT TO THE RULE OF LAW, Brian Tamanaha provides an historical overview of the instrumental view of law – the notion that law is utilized by various entities (e.g., judges, interest groups, lawyers) primarily as a means to achieve a range of ends. Virtually limitless in scope, these ends vary from attempting to further one’s position in society, to promoting social change, to etching one’s policy preferences into law (p.6). In addition to making his case that this is the predominant view of the law in America, Tamanaha compels the reader to more seriously consider the implications of legal instrumentalism, particularly as they have the potential to undermine faith in the law’s objectivity. LAW AS A MEANS TO AN END is an excellent treatment of a substantively interesting phenomenon, with real world implications. It is written in a lively, lucid manner, filled with fascinating tidbits of information about its subject matter. For those interested in the state of the rule of law in modern America, it is a must read.
Despite these shortcomings, Tamanaha’s book provides a superb overview of the emergence of instrumentalism as the primary perspective on law in [*184] contemporary America. The evidence he marshals to support this conclusion is impressive, leaving little doubt as to the validity of his assertions. LAW AS A MEANS TO AN END is an outstanding treatment of an important scholarly question with profound normative implications for American society.
This argument is most clearly laid out in the last chapter of "Law as a Means to an End." If you're familiar with the terms of the debate, you could read that chapter by itself with benefit. The rest of the book provides a history of the instrumental view of law and the effects that Tamanaha believes the instrumental view has had on the U.S. The "effects" part of Tamanaha's argument was not totally convincing for me. For example, he argues that the change (roughly around 1900-1940) from a predominantly non-instrumental view of law to a predominantly instrumental view led people to see law as the main way of changing society however they want, by causing the government to change the law. But one could as plausibly argue that it was the explosive growth of legislation and regulation during the same period (for reasons other than a changing philosophy of law) that led people to see government, through its law-making function, as the main way of changing society, and that the instrumental point of view took hold as a result.
Law as a Means to an End, Volume 5
Rudolf von Jhering
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