For all but the most unflinching consequentialist, "instrumentalism" tends to draw mixed reviews. So it does from Brian Tamanaha. His book, Law as a Means to an End: Threat to the Rule of Law, documents with measured diffidence the ascendancy and current reign of "legal instrumentalism," so entrenched an understanding of law that it is "taken for granted in the United States, almost a part of the air we breathe." Professor Tamanaha shows that in our legal theorizing, our approaches to legal education, our understanding of legal practice, and our perception of judges, legislators, and legal administrators, law is widely believed to be "an empty vessel" that is "open with respect to content and ends." Often, Tamanaha seems to make the stronger claim that non- instrumental views of law strike our modern sensibilities as unreasonable (or naive or faintly ridiculous). Should this be of any concern? While Tamanaha ostensibly intends this book as a warning against the peril that creeping legal instrumentalism poses for the rule of law, his criticism is tempered. On the one hand, he believes that we have already traveled a fair distance toward a purely instrumental view of law and that "intellectual developments and the logic of the situation portend a worsening ... nightmarish scenario." Despite some sanguine comments about the power of "human ingenuity" to stem the instrumentalist tide, he aims to offer a "diagnosis of our worrisome time." On the other hand, he cautions the reader not to take his admonitions categorically: Instrumental views of law are often sound, and "[miore to the point, . . . here to stay"-a fixture of the "modern condition." Non-instrumental conceptions of law trade on "large mythical components" that are "patently implausible" today. Notwithstanding the critical thrust of the book, Tamanaha concludes on an equivocal note, reaffirming his skepticism about non-instrumental theories and opting for circumspection, if not hopefulness, about the future trajectory of legal instrumentalism.
This tension runs throughout and is understandable; after all, one comes across as either unprincipled or insufferably out of touch by weighing in too heavily on either side. But it often leaves the reader wondering what Tamanaha is about in this book. As a work tracing the development of legal instrumentalism in the United States over the past two centuries in a spare 211 pages, the book is readable, nuanced, and persuasive. But the book's remaining thirty-nine pages are less effective in explaining why Tamanaha seems so fretful about the rule of law or what accounts for the seemingly ineliminable impulse to affirm a non-instrumentalist view in the face of the contrary march of history.
Marc O. DeGirolami, Faith in the Rule of Law, 82 ST. JOHN’S L. REV. 573 (2008).