Law as a Means to an End: Threat to the Rule of Law
by Brian Z. Tamanaha
Cambridge University Press, 268 pages, $31.99
It is a commonplace in American legal culture that law is a means to an end, that laws serve such social purposes as protecting individuals against physical harm, promoting efficient business arrangements, and safeguarding the environment. We often disagree about which ends the law ought to serve, and we may think that some laws are inefficient, unwise, or even immoral. But we recognize such laws as valid laws, at least until they are amended or repealed. Law itself is an empty vessel, filled with the rules that legislators enact or judges announce.
It is this understanding of law that Brian Z. Tamanaha, the Chief Judge Benjamin N. Cardozo Professor of Law at St. John's University, sees as a reason for concern. In Law as a Means to an End, Tamanaha argues that the instrumental view of law, coupled with a general breakdown in our ability to reach a consensus about which ends law should serve, poses a serious risk to the rule of law.
Tamanaha's argument begins with the non-instrumental theories of law, which, in his view, were widely accepted in the eighteenth century (and earlier) and which held that law had some definite content precisely as law. Whether because they understood the law as emanating from God, or as discoverable by natural reason, or as founded on the customs of Englishmen from time immemorial, these theories implied that courts were bound to uphold as law certain definite rules. Hence, courts could review the enactments of legislatures to determine whether they conformed to the substantive rules of law as set forth in these theories, and if they did not, courts would find the legislation invalid. Whether this understanding of law was as dominant as Tamanaha suggests is unclear (see the famous debate between Justices Chase and Iredell in Calder v. Bull), but that many lawyers thought this way is certain enough.
In the nineteenth century, however, during a period of rapid social change, legislation began to displace the common law: “Legislation was being promoted by reformists as more democratic, more systematic, clearer and more certain, than the common law.” There followed, in Tamanaha's account, the destruction of non-instrumental theories of law and the rise of legal instrumentalism.
On the practical level, the non-instrumental view fell into disrepute starting in the late nineteenth century, when courts struck down various forms of social-welfare legislation designed to protect employees and unions. Courts held that such measures were illegitimate because they benefited a particular class of private interests, not the public interest generally.
These decisions “contributed to the deterioration of the notion of the common good within the U.S. political-legal culture” because “the courts appeared to be protecting the special interests of employers and capital.” When in the 1930s courts stopped reviewing economic legislation for consistency with the public interest, “a key structural feature of the system” was eliminated.
On the level of legal theory, non-instrumental theories of law simultaneously came under sustained attack. Oliver Wendell Holmes, for example, argued in 1897 that “a body of law is more rational and more civilized when every rule it contains is referred articulately and definitely to an end which it subserves, and when the grounds for desiring that end are stated or are ready to be stated in words.” Later, in the 1920s and 1930s, the legal realist school systematically criticized the conceptual foundations of non-instrumental theories of law, and Karl Llewellyn concluded that legal realists view law as a means to an end, even if they left unclear just what those ends would be.
Finally, on the deepest intellectual level, modern doubt about the objectivity of normative judgments generally cast the whole idea of the common good or public interest into question. Across all fields of knowledge, Tamanaha notes, “objectivity, universal values, and absolute truths were losing their former grounding.” By the 1970s, he adds, “the two streams that underlie the dynamic driving the contemporary legal culture were set in place. The view that law is in essence an instrument had won over the legal academy. This took place in a context of sharp, society-wide, group-based disagreement over moral values and over the public good, coinciding with a loss of belief in the availability of objective standards by which to resolve such disputes.”
Much of this account in Law as a Means to an End is convincing and important. The question of what becomes of law in a society marked by radical disagreement about morals is obviously of great moment, both philosophically and practically. Tamanaha's answer to this question, however, is startling. “In situations of sharp disagreement over the social good, when law is perceived as a powerful instrument, individuals and groups within society will endeavor to seize or co-opt the law in every way possible; to fill in, interpret, manipulate, and utilize the law to serve their own ends. This will spawn a Hobbesian conflict of all against all carried on within and through the legal order.”
Tamanaha sees aspects of this Hobbesian conflict in nearly every undesirable aspect of legal culture. When law professors teach their students that there are good arguments for every side to a legal dispute, or practicing attorneys manipulate legal rules to advance their clients' interests, or crusading lawyers engage in cause litigation to effect social change, or special interests lobby legislators to procure favorable legislation, or judges decide cases by ignoring settled legal rules in order to achieve social ends they think worthy—all of these are the fault of legal instrumentalism, Tamanaha insists, and together they imperil the rule of law.
Here the argument runs too far. To begin with, many of Tamanaha's examples are overwrought. In his view, attorneys' manipulating legal rules to benefit their clients leads directly to scandals like Enron (as if the primary culprits were not the corporate officers but their lawyers). Moreover, Tamanaha insists on seeing such behavior as “symptomatic of a broad culture among lawyers” unlike anything in the past, rather than as aberrational wrongdoing by a few bad actors late in a bull market, for which there are ample precedents.
Similarly, although interested parties have always lobbied legislators, “not since the Gilded Age has the mix of money and politics been this pervasive or this blatant,” a claim that Tamanaha supports by citing Sen. Richard Durbin and Paul Krugman on the misdeeds of the pharmaceutical industry, and then Public Citizen and Nation on the misdeeds of the U.S. Chamber of Commerce. I could just as easily prove that law professors are loopy left-wingers by citing National Review.
More important, Tamanaha can blame so many kinds of wrongdoing on legal instrumentalism only because the defining thesis of legal instrumentalism—that law is a means to an end—is so abstract that it can figure in almost any discussion about law. Tamanaha acknowledges that he is using different meanings of legal instrumentalism in these examples—sometimes he means that laws serve social purposes, sometimes that law is an instrument of social change, sometimes that lawyers practice law in order to make money, etc.—but he seems not to realize that this ambiguity undermines the argument that all these ills, if such they be, have a common cause. He acknowledges that other factors are at work in many cases, but then he simply insists that legal instrumentalism is the dominant factor.
More generally, however, I think Tamanaha makes two philosophical mistakes. First, he thinks that the prevalence of legal instrumentalism is the key phenomenon, the absence of a generally agreed on moral framework being of secondary importance. For Tamanaha, it is as if, having first agreed that law is a means to an end, we then disagree about which ends law should serve because we disagree on normative issues generally. In fact, the absence of a shared moral conceptual scheme is the driving force here: Because we disagree radically on normative issues, we disagree even on what law is and what it ought to do. Disagreement on morals is logically prior to disagreement on legal theory. Utilitarians, social-contractarians, Kantians, virtue-theorists—each have their own characteristic understanding of law. They can agree, verbally, that law is a means to an end, just as they can agree, verbally, that laws ought to be just, but such statements command agreement only because they are abstract enough to conceal systematic disagreement on what the statements mean. Focusing on legal instrumentalism, therefore, takes as central what is actually a consequence of the primary phenomenon, our radical disagreement about morals.
Second, Tamanaha is wrong to think that the fact that we live in an era in which people disagree radically about morals leads to a Hobbesian battle of all against all. In a true Hobbesian battle, no one is constrained by any moral values at all. In the contemporary situation, almost everyone holds some moral conceptual scheme or other that drastically limits which ends he may morally pursue, including through the law. Catholic virtue-theoreticians, for example, cannot use the law to impose religious dogmas on nonbelievers because doing so would, by their own lights, be immoral. In addition, the various value systems, for all their differences, tend to agree on a broad range of cases (virtually everyone, for instance, is against murder, theft and racial discrimination), and all tend to uphold the rule of law as an important value. Although there is no definitive consensus on what may rightly be done through law, everyone recognizes some limits, and on many limits there is wide agreement.
We thus have no Hobbesian battle over the law. We have, rather, an ongoing and practically interminable public argument about which values are the right ones, with ever-shifting coalitions and an endless string of partial victories for various constituencies, all of whom, at least in their cooler moments, recognize almost all their opponents as decent people with reasonable, if mistaken, moral views.
This is not a cause for alarm. Indeed, as I see it, this is not a bad way for a vast country of three hundred million souls to govern itself.
Robert T. Miller is assistant professor at the Villanova University School of Law.