Real and Imagined Threats to the Rule of Law: On Brian Tamanaha's Law As A Means To An End.†
Brian Tamanaha's Law as a Means to an End: Threat to the Rule of Law is a book about
an allegedly dangerous transformation of legal consciousness - from a "non-instrumental" to an
"instrumental" view of the law.1 The book - which gathered rave peer reviews and was selected
in 2007 for special honor by the Association of American Publishers2 - borrows the first half of
its title from Rudolf von Jhering's celebrated 1877 manuscript, in which Jhering advocated the
view (which today may appear self-evident) that the law should be understood and interpreted as
a means to the achievement of social ends. 3 But what may seem obvious today was not always
so: Tamanaha argues that Jhering's thesis signaled a radical change in legal consciousness, from
a "non-instrumental" to an "instrumental" view of the law; and that change, he says, poses a
serious threat to our Rule of Law.
What is an "instrumental" view of the law? "An instrumental view," reads the opening
paragraph of Tamanaha's book, is the belief that
law is a means to an end .… [A]n instrument of power to advance [people's] personal interests or the interests or policies of the individuals or groups they support. Today, law is widely viewed as an empty vessel to be filled as desired, and to be manipulated, invoked, and utilized in the furtherance of ends.4
† BRIAN TAMANAHA, LAW AS A MEANS TO AN END: THREAT TO THE RULE OF LAW (2006).
∗ Assistant Professor of Law, University of Oregon School of Law. J.D., Harvard Law School, D.Phil., Oxford
University. I would like to thank Brian Tamanaha, Lee Goldman, and Bret Boyce for their helpful comments. 1 BRIAN TAMANAHA, LAW AS A MEANS TO AN END: THREAT TO THE RULE OF LAW (2006).
2 The peer appraisals sported on the dust jacket call the book "THE important book of legal theory for this decade,"
and a book with "the potential to change thinking about the law in fundamental ways". 3 Jhering's book was published in the United States under this title in 1913. RUDOLF VON JHERING, LAW AS A
MEANS TO AN END (Isaac Husik trans., Boston Book Co. 1913). 4 TAMANAHA, supra note 1, at 1.
Previous generations, by contrast, thought of the law differently: they believed that the content of
our laws was determined by factors that were beyond our control. This idea is most evident in
the theory of "natural law," which dominated legal minds for millennia, and which maintained
that human laws were determined by the very nature of our universe: "True law," said Cicero in
the first century B.C.,
is right reason in agreement with nature; it is of universal application, unchanging and everlasting …. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people .…5
Thirteen centuries later, Thomas...