Adrian Vermeule, Instrumentalisms: Critiquing Legal Instrumentalism, 120 Harv. L. Rev. 2113 (2007) (reviewing Brian Z. Tamanaha, Law as a Means to an End: Threat to the Rule of Law (2006)).
Abstract: My basic suggestion, in Part I, is that there is no such thing as “instrumentalism.” There is only a variety of instrumentalisms, offered in different theoretical contexts for different purposes. The merits of these different instrumentalisms must be evaluated locally rather than globally. Furthermore – this is a separate point, but a complementary one – there are several antonyms for legal instrumentalism that are materially different. It is no more coherent to praise all of them, just because they are not instrumentalism, than it would be to praise all of anarchism, fascism, and communism because they are alternatives to liberal democracy. Subsequently, in Part II, I ask what prescriptions for the legal system follow from a critique of legal instrumentalism. I suggest that in a legal culture pervaded by instrumentalism (in all of its possible senses), there are powerful discursive pressures to justify an anti-instrumental view by reference to the beneficial effects that holding such a view will produce – by reference, that is, to the instrumental benefits of anti-instrumentalism. When combined with the claim that anti-instrumentalism requires certain beliefs, not merely certain actions, this is an intrinsically paradoxical stance; it leads, perhaps unavoidably, to a type of esoteric legalism, under which the theorist is quite willing to promote a false belief in the truth of anti-instrumentalism in order to secure the benefits of that belief. Unfortunately, however, there are well-known paradoxes of esotericism that make views of this sort self-defeating. In the Conclusion, I suggest that despite the theoretical puzzles underlying LME, it possesses a thematic and emotional unity as a kind of legal dystopia. As such, its contributions should be assessed by literary as well as theoretical criteria.