LAW AS A MEANS TO AN END

Vol. 17 No. 2 (February, 2007) pp.181-184

LAW AS A MEANS TO AN END: THREAT TO THE RULE OF LAW, by Brian Z. Tamanaha. New York and Cambridge: Cambridge University Press, 2006. 268pp. Cloth. $75.00/£43.00. ISBN: 0521869528. Paper. $29.99/£17.99. ISBN: 0521689678. eBook format. $24.00. ISBN: 9780511248054.

Reviewed by Paul M. Collins, Jr., Department of Political Science, University of Houston. E-Mail: pmcollins [at] uh.edu.

Although the term “instrumentalism” is rarely employed outside of academia, the notion that the law can be used to achieve an end permeates contemporary discussions of law and courts. During judicial confirmation hearings, academics, journalists, politicians, and members of the public regularly opine on the merits of presidential appointments in instrumental terms, probing, for example, whether the nominee is “conservative [liberal] enough.” Similarly, Supreme Court decisions are frequently covered by the media with a focus on their liberal or conservative nature, suggesting to the public that the justices utilize the language of the law to achieve their preferred public policies. While it is clear that this instrumental view of the law dominates contemporary American legal thinking – both lay and academic – there has been little scholarly attention tracing the evolution of instrumentalism’s path throughout US history.

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.

Tamanaha divides his work into three sections. First, he presents a meticulous overview of the origins of legal instrumentalism in both the practice and study of law, from its roots in the nineteenth century to its contemporary acceptance in the present day. Tamanaha appropriately begins with a treatment of non-instrumental views of law that originated in the English common law traditions that so heavily influenced colonial America. During this period, law was viewed with reverence; it was not made, but rather found. In short, this early American view of law, stemming from customary and natural law, was [*182] that law could be, and should be, objectively determined through reasoned deliberation.

According to Tamanaha, the non-instrumental view of law first came under attack during the eighteenth century Enlightenment in which reasoned deliberation – previously thought to induce objectivity – was “emptied of its substance,” leading to the conclusion that, while reason enables individuals to rationally pursue their ends, it cannot tell them which are the proper ends to seek out (p.22). Throughout the nineteenth century, law was increasingly practiced and studied through an instrumental lens, although legal instrumentalism did not permanently establish itself as the dominant view of law until the twentieth century. During this period, scholars across a host of disciplines – economics, history, political science, sociology, as well as members of the legal academy – mounted a strong attack on legal formalism. Most visible here were the legal realists, beginning with the revolutionary works of Jhering, Holmes, and Pound, and later including the likes of Cook, Frank, and Llewellyn, who rejected legal formalism, instead embracing the conception that law could be used to further social change. Tamanaha concludes this section with a brief overview of Supreme Court decision making during the twentieth century, illustrating how the justices often exemplify legal instrumentalism in action by using the language of the law to further their policy goals.

Second, Tamanaha explores the implications of legal instrumentalism’s foothold in contemporary America. Beginning with an overview of instrumentalism in the legal academy, the author provides evidence that instrumentalism dominates legal thought in modern law schools. Following this, Tamanaha reviews instrumentalism as it relates to the law and economics, critical legal studies, and the law and society movements, concluding that each of these movements, while exhibiting stark differences, are nonetheless united in their commitment to legal instrumentalism. After discussing instrumentalism in the practice of law, the author offers a treatment of cause litigation, illustrating how contemporary interest groups have utilized the law to achieve ideological ends. This section of the book concludes with a discussion of instrumentalism in the judiciary, focusing primarily on the contentious appointment process, in addition to covering instrumentalism in the bureaucratic and legislative arenas.

Finally, Tamanaha identifies how contemporary acceptance of legal instrumentalism has resulted in a weakening of the rule of law, in favor of a cynical view of the American legal system. The author proposes that much of this misanthropy is attributable to judges themselves. By rendering decisions with the goal of promoting their own ends, and in accord with their policy preferences, jurists reduce public faith in the judiciary as an objective, deliberative body. Tamanaha offers several prescriptions to remedy this state of affairs, primarily aimed at governmental actors. These include having legislators pass laws in the public interest, compelling public officials to [*183] abide by these laws, and obligating judges to seek out the most correct legal answers, rather than using law as a means to further their preferred policy preferences (p.250). While the author notes that these conditions are minimally necessary for a properly functioning legal system, they receive minimal discussion, and, as a result, it is not completely clear how they can be applied in practice.

Taken as a whole, Tamanaha’s book makes a significant contribution to the scholarly understanding of the rule of law in American jurisprudence. However, it does suffer from a number of weaknesses, two of which deserve mentioning here. Chief among these is that, in covering so much ground, the author is unable to provide in-depth coverage of any one development, a point the author concedes early in the book (p.8). In this regard, Tamanaha sacrifices detail for breadth, something that may draw the ire of readers whose scholarship encompasses one of the many topics discussed throughout the book. For example, while I found the chapter on cause litigation by interest groups illuminating, I was discouraged by its somewhat narrow focus on interest group activity in the later part of the twentieth century. Likewise, I believe the book would have benefited from a more in-depth treatment of instrumentalism’s role in state judicial elections, which is only given four pages of treatment.

In addition, I would like to have seen Tamanaha incorporate a more thorough discussion of social psychological approaches to judging in his treatment of the possibility of judicial objectivity in the final section of the book. While the author does an excellent job discussing the problems associated with instrumentalist judges, focusing on how a lack of objectivity fosters a normatively undesirable uncertainty in the law, this section would benefit from a discussion of motivated reasoning. This is the idea that individuals unconsciously process information in a biased manner by viewing information consistent with their preferences more favorably than authorities that are incongruent with their ideological predispositions (e.g., Baum 1997; Kunda 1990; Rowland and Carp 1996; Wrightsman 2006). This concept is a vital consideration for Tamanaha’s position on the negative consequences of instrumentalism, and his prescriptions to overcome instrumentalism, since it suggests that judges might behave in a manner that they believe is objective, but give more weight to argumentation and evidence they were unconsciously predisposed to support. If motivated reasoning is applicable to judicial decision making, it suggests a more complicated picture than the author paints. That is, if judges are motivated reasoners, asking them to reach decisions that are grounded in the law does not necessarily eliminate the influence of policy preferences on their choices since these preferences can still manifest themselves unconsciously, even when the judges engage in reasoned deliberation.

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.

I suspect this book will find its primary audience with legal theorists and legal historians, as well as those scholars with a keen interest in normative issues facing courts. However, I also believe this book will appeal to a more general audience of social scientists interested in the development of instrumentalism in the American legal system. While the absence of hypotheses and empirical testing might put off more quantitatively oriented scholars, I strongly dissuade such scholars from ignoring the book, primarily because, in addition to its excellent treatment of a substantively interesting phenomenon, Tamanaha’s book serves as a model of interdisciplinary research. In recent years, students of the courts have paid increased attention to the lack of communication that too often exists when scholars from divergent disciplines conduct similar research on law and courts, without being aware of what the other is doing (e.g., Cross 1997; Rosenberg 2000). Unlike research conducted in this unfortunate “tradition,” Tamanaha illustrates an astute understanding of the wide array of disciplinary perspectives tackling issues related to the legal system and seamlessly incorporates a discussion of this research – both qualitative and quantitative – in his treatment of instrumentalism. In this sense, it is a rare example of significant legal research that is seriously attentive to both empirical and normative scholarship on American jurisprudence.

REFERENCES:

Baum, Lawrence. 1997. THE PUZZLE OF JUDICIAL BEHAVIOR. Ann Arbor: University of Michigan Press.

Cross, Frank B. 1997. “Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance.” 92 NORTHWESTERN UNIVERSITY LAW REVIEW 251-326.

Kunda, Ziva. 1990. “The Case for Motivated Reasoning.” 108 PSYCHOLOGICAL BULLETIN 480-498.

Rosenberg, Gerald N. 2000. “Across the Great Divide (Between Law and Political Science).” 3 GREEN BAG 267-272.

Rowland, C. K., and Robert A. Carp. 1996. POLITICS AND JUDGMENT IN FEDERAL DISTRICT COURTS. Lawrence: University Press of Kansas.

Wrightsman, Lawrence S. 2006. THE PSYCHOLOGY OF THE SUPREME COURT. New York: Oxford University Press.

*************************************************