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by Brian Z. Tamanaha

eBook Law as a Means to an End: Threat to the Rule of Law (Law in Context) download ISBN: 0521689678
Author: Brian Z. Tamanaha
Publisher: Cambridge University Press; 1 edition (October 2, 2006)
Language: English
Pages: 268
ePub: 1756 kb
Fb2: 1861 kb
Rating: 4.1
Other formats: docx mobi lrf lit
Category: Act
Subcategory: Legal Theory and Systems

I wish there had been a book like this to read 25 years ago when I was in law school.

I'm a legal scholar interested in this area though my usual area is corporate and commercial law. This is an excellent book. I wish there had been a book like this to read 25 years ago when I was in law school. Very highly recommended.

Brian Tamanaha's Law as a Means to an End is something very rare-a book that has the potential to change thinking about the law in fundamental ways. The book accomplishes three substantial tasks with admirable brevity, erudition, and clarity

Brian Tamanaha's Law as a Means to an End is something very rare-a book that has the potential to change thinking about the law in fundamental ways. The book accomplishes three substantial tasks with admirable brevity, erudition, and clarity

By Brian Z. Tamanaha. How we measure 'reads'.

By Brian Z. The article aims to provide a comprehensive and detailed reading about the less studied Leon Duguit's work. It starts, then, with the reconstitution about the theoretical background underpinning their thinking, namely the theories of Herbert Spencer and Emile Durkheim, and continues from there, with his conception of the state, the law, and the rule of law. Duguit's theory, in the current.

An instrumental view of law – the idea that law is a means to an end – is taken for granted in the United States, almost a part of the air we breathe.

This book identifies the underlying source of these battles in the spread of the instrumental view of law - the idea that law is purely a means to an end - in a context of sharp disagreement over the social good

This book identifies the underlying source of these battles in the spread of the instrumental view of law - the idea that law is purely a means to an end - in a context of sharp disagreement over the social good. It traces the rise of the instrumental view of law in the course of the past two centuries, then demonstrates the pervasiveness of this view of law and its implications within the contemporary legal culture, and ends by showing the various ways in which seeing law in purely instrumental terms threatens to corrode the rule of la. .

Part of the Law in Context Series). by Brian Z. Select Format: Hardcover. ISBN13:9780521689670.

Threat to the Rule of La. Tamanaha, Brian Z. 2010. A Companion to Philosophy of Law and Legal Theory. 2011. A Vision of SocialLegal Change: Rescuing Ehrlich from Living Law.

Tamanaha, Brian Z. Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World. Ethics & International Affairs, Vol. 25, Issue. Fundamental Principles of the Sociology of Law. Trans.

Law as a Means to an End Threat to the Rule of Law Law in Context pdf download.

Tamanaha's previous books have shown his ability to present vivid arguments on large themes of great contemporary interest.

Law as a Means to an End: Threat to the Rule of Law. By Cotterrell, Roger. Tamanaha's previous books have shown his ability to present vivid arguments on large themes of great contemporary interest. He engages provocatively with key debates; typically develops his arguments in clear, direct prose; and usually reaches strong conclusions that challenge the reader.

Автор: Brian Z. Tamanaha Название: Law as a Means to an End .

Corroding the Rule of Law: 12. Collapse of higher law, deterioration of common good; 13. The threat to legality; Epilogue. This book examines the history, foundation, and meaning of the right to health in international law. It concludes that it is possible to offer an understanding of this right that is practical and capable of being implemented.

The contemporary US legal culture is marked by ubiquitous battles among various groups attempting to seize control of the law and wield it against others in pursuit of their particular agenda. This battle takes place in administrative, legislative, and judicial arenas at both the state and federal levels. This book identifies the underlying source of these battles in the spread of the instrumental view of law - the idea that law is purely a means to an end - in a context of sharp disagreement over the social good. It traces the rise of the instrumental view of law in the course of the past two centuries, then demonstrates the pervasiveness of this view of law and its implications within the contemporary legal culture, and ends by showing the various ways in which seeing law in purely instrumental terms threatens to corrode the rule of law.
Comments: (3)
Zeks Horde
Brian Tamanaha has captured in one book the essence of postmodern judicial activism. The United States Supreme Court certainly reached the correct result in Brown v. Bd. of Education. But that decision was a turning point of sorts for liberal jurists who saw the ability of judicial opinions to bring about societal change, and to do so without being bound by the rule of law or the dictates of reason. No, in future cases they could decide in advance what outcomes they wanted to achieve, and then write their opinions in such a way as to justify their predetermined outcomes.The ends now justify the means. In this sense, reason, or, rather, the appearance of reason has become a tool, a hammer-a technique-to advance the political power of the Court. Having first implicitly redefined the "judicial power" conferred on federal and state courts by their respective constitutions, the courts are now free to do as they please, and there is no one to stop them. This is all being done to bring about the reconstitution of American society which intellectuals everywhere believe is sick, unequal, and, therefore, unjust. Now, the state supreme courts have become far more activist in almost every way. Federal and state judges are morphing from decision makers, previously bound by the rule of law, into life changers. For those who believe that ours is a government of laws and not of men, the time for abandoning that belief is now. Tamanaha recognizes that this is a potential problem, but it is worse than he admits. This change has only happened because there is no longer any source of transcendent truth that can serve as an anchor for the rule of law, Without a source of truth from which to begin, we are, as Professor Leff demonstrated, adrift in a sea of moral relativism with no way to navigate through life except by making things up as we go along. Sadly, we are all we've got. Nobody can say with any certainty what is right or wrong, and, consequently, we have no place to begin our formulation of law, or to limit human reason to the confines of the real world. It is simply a matter of determining which faction can gain control of the state and all of its mechanisms, its weapons, to be used in aid of constituent subgroups, and against enemies of the state. Along with Tamanaha's book, those interested in law as a tool or as an instrument for achieving some predetermined end should read The Technological Society by Ellul.
elegant stranger
Professor Tamanaha makes a very important point here about the pragmatic theory of judging. Pragmatic judging -- an approach advocated most eloquently by Judge Richard Posner in a number of books and other writings -- means in essence that, when faced with an issue that is not clearly resolved by the existing law, the judge should resolve the issue in the way that he or she thinks makes the most sense, all things considered, for the parties and society. This approach obviously gives judges a lot of leeway, since "what makes the most sense" is something that no two people are likely to agree upon. Posner thinks that that is OK because judges do it anyway, and so we might as well be up front about it.

Tamanaha's response is twofold. First, he argues that Posner exaggerates the extent to which judges typically resolve issues according to their private biases instead of what legal reasoning points to as being correct (or most nearly correct). Second, Tamanaha argues that there is a major difference between a judge who says, "I can and should resolve issues based on what I think makes the most sense *except when* the law *clearly resolves* the issue," and a judge who says, "I can and should resolve issues based on what I think makes the most sense *only when* the law *truly does not resolve* the issue." In other words, the pragmatic judge gives himself free rein whenever he can, while the traditional judge gives himself free rein only when there's really no other choice.

This argument is most clearly laid out in the last chapter of "Law as a Means to an End." If you're familiar with the terms of the debate, you could read that chapter by itself with benefit. The rest of the book provides a history of the instrumental view of law and the effects that Tamanaha believes the instrumental view has had on the U.S. The "effects" part of Tamanaha's argument was not totally convincing for me. For example, he argues that the change (roughly around 1900-1940) from a predominantly non-instrumental view of law to a predominantly instrumental view led people to see law as the main way of changing society however they want, by causing the government to change the law. But one could as plausibly argue that it was the explosive growth of legislation and regulation during the same period (for reasons other than a changing philosophy of law) that led people to see government, through its law-making function, as the main way of changing society, and that the instrumental point of view took hold as a result.

In addition, I'm not sure that instrumental vs. non-instrumental is the most accurate way to frame the issues Tamanaha discusses here. Law has always been seen as a means to an end -- as promoting something good outside itself (morality, justice, civil order, etc.). The difference between what Tamanaha calls the non-instrumental and instrumental views is the degree to which those views take law to be malleable. The non-instrumental view sees the means and ends of law as relatively fixed, whereas the instrumental view sees the means and ends as being freely changeable. This does seem to be Tamanaha's real point -- the image he uses to demonstrate instrumental thinking is of the law as an "empty vessel" that law-makers can fill with whatever they want. "Instrumentalism" merely seems to me to be an inaccurate way of capturing the debate.

In any event, Tamanaha's overarching argument provides a strong and needed qualification to the pragmatic approach.
Ericaz
I'm a legal scholar interested in this area though my usual area is corporate and commercial law. This is an excellent book. Although I gather BT has refined his views somewhat since he wrote this, it is I think a very useful and fresh way to look at the course of American jurisprudence, and based on other research I have done, accurate as well. BT has a crisp and unpretentious writing style and his arguments are straightforward. I have not quite finished the book, but based on first 2/3 I am already very glad I picked it up. He is admirably even-handed. At a few points one can tell he leans against more conservative views such as originalism and law & economics, but he does not seem to let this influence his judgments.

I suppose one could criticize that the book could have been more ambitious theoretically, but given that so much legal scholarship these days is failed theory, I am glad it is pitched as it is. The book weighs in at 230+ pages, but would be longer than that in print you could read without glasses. The Kindle edition does not have an active TOC which is unfortunate.

The narrative qualities of the book make it a good read. I think the story it tells is almost tragic, but it is compelling. I wish there had been a book like this to read 25 years ago when I was in law school. It would have made the theoretical muddle I found so frustrating then more understandable, at least in the sense I would have understood how things got to be the mess they were. Very highly recommended.