Law as a Means to an End: Threat to the Rule of Law. By Brian Z. Tamanaha

Law as a Means to an End: Threat to the Rule of Law. By Brian Z. Tamanaha. New York: Cambridge Univ. Press, 2006. Pp. xii + 254. $80.00 cloth; $31.99 paper. Tamanaha's previous books have shown his ability to present vivid arguments on large themes of great contemporary interest. He engages provocatively with key debates; typically develops his arguments in clear, direct prose; and usually reaches strong conclusions that challenge the reader. His newest book shows all these characteristics and is also written with much passion, because its theme is nothing less than the health of, or-as he sees it-the sickness of the U.S. legal system as a whole. He argues that a pernicious instrumentalism has taken over virtually all institutions of American law-especially the legislative and administrative processes, the Supreme Court, and much of lawyers' practice, legal education, jurisprudence, and sociolegal scholarship. If law was always seen instrumentally to some extent, what Tamanaha thinks is new (roughly since the beginning of the twentieth century) is that instrumental views have been established in a "specific historical contrast" (p. 35) with earlier noninstrumental views, now entirely displaced. Law tends now to be seen only as a mere technical means to achieve any chosen ends. Noninstrumentalism viewed law as having "an inviolable, built-in principled integrity" (p. 219); its special identity, making it more than just a tool, was "as a matter of principle, reason, immemorial customs of the community, a body of specialized knowledge and a science" (p. 58). On this noninstrumental view, law adjusts to social change but is not a tool of social engineering; judges should apply law "with no preconceived controlling end in view," and legislators must "seek to declare the immanent norms of the community or natural principles" (p. 7). In Tamanaha's argument, instrumental views of law cannot now be displaced and would not be dangerous but for the deterioration of belief in what he variously calls the common good, the public good, general welfare, or public purpose. Without this, nothing holds legal instrumentalism in check. With "rampant instrumental manipulation of the law" (p. 250), lawyers have little concern beyond furthering their clients' interests (and so their own) by any means short of illegality; the selection of judges depends on whether their personal preferences will lead them to adjudicate consistently with the interests of those who decide their appointment; legislators tailor their votes on legislation to the demands of those who can influence their re-election; law students are taught that skill in arguing legally on either side of a case is more important than working out how it should be resolved. Tamanaha's discussion of professional legal practice (especially corporate and tax), and its often "brutish conditions" (p. …