Tamanaha's Descent Into Instrumentalism at Law & Society Blog

Tamanaha’s Descent Into Instrumentalism

Published by Manfred Gabriel July 2nd, 2005 in Jurisprudence

Following up on drhfk’s comments, here are some further thoughts on the Pervasive Perils of Instrumentalism. According to Brian Tamanaha’s excellent article, there was a shift two hundred years ago, and law transformed from being formalist into been instrumentalist. I have two wrinkles to add: the role of constitutionalism and the historical resistance to formalism in the common law.

What is missing from the Tamanaha’s historical account is the rise of constitutionalism. It is not a coincidence that the first modern bill of rights was passed in Virginia, an artificial new society built in the New World. After the French Revolution, the new French society was also artificial: man-made, and constituted by men. The sense that society and the state could be (re-)made by the people to serve the people, was new and radical. The state wasn’t just there or god-given. The change was monumental, of course, and it flowed from enlightenment as Tamanaha correctly identifies. The state had become a product of society and not a condition of existence. A wave of constitutionalism swept across western societies, and all powers of the state and the rights of the people were constituted in charters. It was no longer self-evident that man was a zoon politikon, but rather that man was imbued with certain inalienable rights, which is to say: that the individual, the person exists before the state and forms the state in order to serve the individual’s ends.

The point is this: It wasn’t just the law that became instrumental two hundred years ago, it was the state and everything in it including the law. An instrumentalist view is a necessary feature of the constitutionalism and the modern state. We can’t be formalists today in the sense that we regard law as having its own rhyme and reason, independent of the state. The constitution and the modern state are built on the belief that all power exercised by the state must be legitimate. Power isn’t simply awarded by the grace of god. The concept of instrumentalism flows from the requirement of legitimacy: What serves no discernible purpose, can’t be legitimate.

Regarding the common law: Tamanaha says that pre-enlightenment law was marked by the presence of natural law and customary law, but not legislation.

Customary law was said to have existed from time immemorial. It was derived from and constituted the very way of life of the community, the byways and folkways of the people. As such, the content of customary law was no the product of any particular individual or any group’s will, but was collective emanation from below. Accordingly, the process of explicitly articulating and applying the law was a matter of discovering and declaring the unwritten law that was already manifested or immanent in the community life.

I am not sure that this is a fair historical description: Legislation was very much a way of life in medieval times. Common Law legislation goes back to the thirteenth century. (On the continent medieval lords delighted in legislating everything from curfews, the color and manner of clothing to be worn by subjects, right down to the weregild owed for homicide. The Reinheitsgebot, that famous piece of medieval legislation fixing the ingredients of beer, dates from 1516.) The point is that pre-enlightenment law wasn’t free from legislation and wasn’t all customary or god-given. “The rise of legislation as a mode of law making was a key contributing factor in the spread of instrumental views of law,” Tamanaha writes. I don’t agree that the rise of legislation made the law instrumental (that was product of constitutionalism) or that rise of legislation exacerbated the situation. Formalist or instrumentalist views don’t turn on the relative amount of legislation found in a particular legal system, and Tamanaha combines a conceptual account with one that is contingent and particular to the common law and the U.S.

The historical model in Tamanaha strikes me as too simple: A golden past of belief in the law as a thing unto itself, somehow above and impervious to the temporal and to squalid politics, followed by a descent into the relativist, cynical, grab-what-you-can present of instrumentalism. If you look for a closer description of what non-instrumentalism looks like according to Tamanaha, you find 19th-century quotes from Langdell and others and the assertion that law used to be divine or customary, not legislated. Tamanaha correctly notes the influence of Blackstone, but he also states that “common law was tought to be product of the customs of the people from time immemorial. It was that the law represented the lived ways fo the community their collective wisedom recognized and refined into law.” That sounds like 19th century gloss on the past of the common law.

The common law before Blackstone after all was just one of several legal orders, constantly supplemented by equity. Equity was seen to compensate for the deficiencies of the common law. Common law was the King’s law, and not the law of the people. Their law, evolving slowly from customs, was the law of the manor, of the majorial courts. The common law was separated from the “people” and their customs by Law-French and the “people” in fact would rarely have had access to royal justice, especially after the common-law courts were concentrated in Westminster. Apart from not being thought of as complete or perfect (but rather in need of equity’s redemption), I doubt that the common law before Blackstone was thought of as logical or systematic or an image of pre-existing (natural or divine) order. What seems clear, at least, is that common lawyers weren’t interested in the question: After Bracton, there was no systematic treatise on the common law, no reported inquiry into the nature or internal logic of the common law. In fact there was very little writing about the common law: There is a wealth of written records (reaching back unbroken to the 12th century), there are digests and abridgments, but for centuries before Blackstone, there are no theoretical or systematic treaties on the common law. There are Coke, St. German, Littleton, and Hale, of course, but overall there seems to have been very little interest in questions such as the Nature of Law as formal or instrumental.

Common lawyers were trained in the Inns of court, not at university. Blackstone was the first professor of law in England, if I remember correctly. A professor of law would have appeared strange and superfluous to the lawyers who had trained their own with abridgments and dinners since time immemorial. It is no wonder then, that Blackstone set out to justify his existence by creating a new field of inquiry: the system and nature of the law. On the continent, such theoretical inquiry had been going on for some time, of course, but not in England. It was a part of the enlightenment project, budding scientific positivism. Nature (and the law) were there, inherently logical and rational, and the rational order of things was transparent to man capable of reason. I don’t think there was much of a conception of a complete system and universe of the common law that was discovered rather than created before Blackstone. And if there was it wasn’t sufficiently relevant for anyone to actually write about it.

Here is a graph, showing the Nature of Law (I’ve always wanted to chart that one out). In fig. 1, I have charted the account Tamanaha gives, unless I misread him: From a pure and golden past of formalism, in which judges were constrained by the notion that law is fixed and not fungible, we have descended into the depth of instrumentalism. The lower chart, fig. 2, shows my version of events: After centuries of pragmatic unsystematic common lawyering, professors, struggling barristers, and other such marginal common law figures take the enlightenment project to the law and create the immutable, eternal Law that Tamanaha perceives in the 19th-century quotes of American common lawyers. (It is incidentally no coincidence that Tamanaha cites American lawyers for the halcion days of formalism: There was little to read on law but Blackstone in America for almost a century, and I believe it left a lasting (if slightly unbalanced) impression on the America common law.