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.
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