Title: The Tensions Between Legal Instrumentalism and the Rule of Law
Abstract:THE TENSIONS BETWEEN LEGAL INSTRUMENTALISM AND THE RULE OF LAW Brian Z. Tamanaha (Very Rough Draft) INTRODUCTION The United States legal tradition combines two core ideas. The first idea, known broadl...THE TENSIONS BETWEEN LEGAL INSTRUMENTALISM AND THE RULE OF LAW Brian Z. Tamanaha (Very Rough Draft) INTRODUCTION The United States legal tradition combines two core ideas. The first idea, known broadly as the “rule of law,” is that government officials and citizens are obligated to abide by a regime of legal rules that govern their conduct. The second idea, what I call legal instrumentalism, is that law is a means to an end; or, put in more familiar terms, law is an instrument for the social good. Both ideas are taken for granted and are equally fundamental in the contemporary U.S. legal culture. Seldom is it recognized that the combination of these two ideas is a unique historical development of relatively recent provenance, and that in certain crucial respects they are a mismatched pair. The rule of law is a centuries-old ideal, but the notion that law is a means to an end became entrenched only in the course of the nineteenth and twentieth centuries. That was the view of law famously advocated by Jeremy Bentham and Rudolph von Jhering, and in the United States by Oliver Wendell Holmes, Roscoe Pound, and the Legal Realists. These theorists argued that law should be declared at our will and shaped to achieve our collective social purposes. Prior to their arguments, law was characterized as the immanent order of natural principle or of the customs and moral norms of the society or community. Law is not an empty vessel to be filled in by our leave, it was thought; rather law is predetermined in some sense, consistent with what is necessary and right.Read More
Publication Year: 2006
Publication Date: 2006-04-17
Language: en
Type: article
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Cited By Count: 1
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