Faith in the Rule of Law
Marc O. DeGirolami
St. John's University School of Law
St. John's Law Review, Forthcoming
Columbia Public Law Research Paper No. 08-175
This is an essay on Professor Brian Tamanaha's book, "Law as a Means to an End: Threat to the Rule of Law" (Cambridge Univ. Press 2006), and what Tamanaha describes as the danger 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 of law in the face of the contrary march of history.
The essay offers an answer to these questions. It claims that one source of resistance to the seemingly inexorable progress of legal instrumentalism lies in the non-rational, temporally unbounded human yearning that the rules that guide our lives should deserve our allegiance because they represent a transcendent structure of meaning. Our opposition to legal instrumentalism 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 the rise of legal instrumentalism, the essay reinterprets what Tamanaha repeatedly emphasizes as the crucial contemporary instrumentalist danger - 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 may be mistaken in analogizing Tamanaha's thesis to a kind of secularized Pascal's wager. The essay concludes by considering whether there is any value in faith in the rule of law and what that value might be.
Number of Pages in PDF File: 37Accepted Paper Series
Date posted: August 30, 2007
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