By Marc O. DeGirolami†
This essay considers what Professor Brian Tamanaha
describes in his recent book, Law as a Means to an End: Threat to
the Rule of Law, as the threat that legal instrumentalism
poses for the rule of law. It claims that though Tamanaha
successfully traces the rise of legal instrumentalism over the last
two centuries, the reader comes away wondering why Tamanaha seems
so fretful about the strength of belief in the rule of law or what
accounts for the desire to affirm a non-instrumentalist view in the
face of the contrary march of history. The essay explores
these unanswered questions and claims that one source of resistance
to the inexorable progress of legal instrumentalism lies in the
non-rational, temporally unbounded human yearning that the rules
that guide our lives deserve our allegiance because they represent
a transcendent structure of meaning. Our opposition to legal
instrumentalism thus reflects faith in the rule of law, a belief
that the law is something other than merely a means to resolve our
ordinary conflicts, and that it bestows worth and possibility to
its adherents beyond their historical context. Drawing from
Tamanaha’s excellent history of legal instrumentalism, the essay
reinterprets Tamanaha’s description of the critical contemporary
instrumentalist threat—our growing inability or unwillingness to
believe that the law is anything but a tool to advance interest—as
loss of faith in the rule of law. The essay thus offers a
counterpoint to Professor Adrian Vermeule’s reading of the book,
arguing that Vermeule is mistaken in analogizing Tamanaha’s thesis
to a kind of secularized Pascal’s wager. The essay concludes
by considering whether there is inherent value in faith in the rule
of law and what that value might be.
† Associate-in-Law and J.S.D. candidate, Columbia Law School;
LL.M. Columbia; J.D. Boston University School of Law; M.A. Harvard
University.
BRIAN Z. TAMANAHA, LAW AS A MEANS TO AN END: THREAT TO THE RULE OF
LAW (2006).