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...promoting efficient business arrangements, safeguarding environment. We often disagree about which ends the law ought to serve, and we may think that some laws are inefficient, unwise, or even immoral. But we recognize such laws as valid laws, at least until they are amended or repealed. Law itself is an empty vessel, filled with the rules that legislators enact or judges announce.
It is this understanding of law that Brian Z. Tamanaha, the Chief Judge Benjamin N. Cardozo Professor of Law at St. John's University, sees as a reason for concern. In Law as a Means to an End, Tamanaha argues that the instrumental view of law, coupled with a general breakdown in our ability to reach a consensus about which ends law should serve, poses a serious risk to the rule of law.
Tamanaha's argument begins with the non-instrumental theories of law, which, in his view, were widely accepted in the eighteenth century (and earlier) and which held that law had some definite content precisely as law. Whether because they under stood the law as emanating from God, or as discoverable by natural reason, or as founded on the customs of Englishmen from time immemorial, these theories implied that courts were bound to...
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