Thursday, October 12, 2006

Our Ailing Legal Culture

Brian Tamanaha

Our contemporary legal culture is ailing. Nasty ideological battles over federal judicial appointments have become the norm. Millions of dollars flow into state judicial elections in an effort to seat desired judges, who in turn render decisions that benefit their contributors. Members of Congress and their staffs accept money and favors (and promises of future employment) from lobbyists—reportedly over $2 billion a year—with the expectation of the givers that favorable legislation will result. Cause litigation firms on the left and the right engage in rancorous legal fights around the nation on a range of subjects, seeking to further their agendas, from teaching creationism, to overturning SEC regulations, to fighting affirmative action, to promoting (or opposing) gay marriage. The highest ranking lawyers in the federal government manipulate legal analysis to provide legal cover for torture. Prominent corporate lawyers are under indictment or investigation for constructing illegal tax shelters or for kickbacks in securities litigation, and have been implicated in various corporate frauds or other dubious activities.

These various situations, and many others, have a common link: everyone involved sees and treats law as an instrument to advance their ends. Law as a Means to an End traces the emergence and spread of the instrumental view of law in the United States over the past two centuries.

Law has not always been understood in consummately instrumental terms--that is, purely as a means to an end. Up through the nineteenth century, the law was portrayed by the legal elite to have a built in content and integrity, comprised of natural principles, or of immanent community norms, or of the logical and inherent requirements of objective legal concepts. Law was not thought to be an empty vessel that could be declared at will or filled in with any content whatsoever.

Beginning with Bentham and von Jhering, and taken further by Holmes, Pound, and the Legal Realists, reformers challenged this centuries-old view, arguing that law is an instrument to serve the social good.

In the course of the twentieth century, this view took hold, but with a twist. The instrumental view of law swept the legal culture, while people lost faith in the notion of the social good—either no longer believing that there is a common social good, or that we can ever agree upon what it is.

A pervasively held instrumental view of law in a context of sharp group-based disagreement leads to a Hobbesean struggle of all-against-all within the legal order and over the legal apparatus itself. In one arena after another, individuals and groups attempt to seize control of the law and use it as an instrument to advance their own or their groups’ agendas or interests—wielding the law as a coercive weapon against others.

One final note: readers of this post may object that law has always been seen and utilized instrumentally, regardless of claims to the contrary by the legal elite or by lawyers, and that there have always been battles to control the power of the law and wield it against others. This reaction is correct, as I also show in the book. But it is a mistake to conclude from this that the shift to a pervasively instrumental view of law within the legal culture has had no real consequences. A major shift in prevailing ideas inevitably has implications for action, many of them unanticipated.

A bit more detail on the book, for anyone interested, can be found at this PrawfsBlawg post.


Professor Tamanaha...everyone involved sees and treats law as an instrument to advance their ends.

Isn't this just a predictable side-effect of the hijacking of Darwinian thought by the robber barons of the early Industrial Age, when they turned "what doesn't fit its environment dies" into a "scientific" gloss for "might makes right?" Ever since then the moneied class, with the help of folks like Coase and Judge Posner, we have seen a growing emphasis on the bottom line and an ever growing sector of our society can say with a straight face that their primary duty is to shareholder returns. Apparently the fables of Dicken's are lost on these people, "Mankind was my business. The common welfare was my business; charity, mercy, forbearance, and benevolence, were, all, my business. The dealings of my trade were but a drop of water in the comprehensive ocean of my business!"

Luckily it isn't universal, this instrumentalist or utilitarian conception of law. There are even a few notable professors, in a position to shape young minds, who believe there is more. Keep the faith; we need more voices like yours.

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