Tamanaha on instrumentalism. It's a strange book, well intentioned but as above he's blind to his own words. He describes the conservative anti-democratic judiciary in the 19th century as non-instrumentalist, as they thought of themselves, and both liberal and conservative anti-democratic courts in the 20th (Warren/Rehnquist) as instrumentalist, which the liberals accept and conservatives deny against all evidence. Of the present he writes [p.97]: "It is increasingly difficult to take the Justices' articulation of the legal grounds for their decisions at face value." But to any serious observer including readers of this book, given the record it describes, that was never possible. What he seems to regret, in references to things once "concealed" and "unspoken", is that we no longer believe our own lies. He has a point but he doesn't take the discussion where it needs to go, which is outside the law and to society.
Tamanaha ignores the overriding fact of crisis, of the struggle among parties to agree on terms when the norms of civil discourse no longer apply. And why should they have for blacks, or other minorities and women, in 1900 or 1965? Formal justice exists only within a unified culture: it's an illusion held in common. The crises of the 20th century originate in large unstable communities with few common interests hence few common illusions. Tamanaha defends official common form without demanding common substance, and ignores unofficial common form entirely. In Tamanaha's telling, judges were once charged both with preserving and adapting the common law, but he ignores the fact that this flexibility was possible only within a unified social order. Adaptation requires instrumentalism, but it's masked by common assent of the enfranchised. Tamanaha ignores the causes of instrumentalism in rebellion. Rehnquist, for one example, was not just an intellectual conservative. As was made clear during his confirmation hearing for Chief Justice, in the testimony of witnesses to acts of voter intimidation in the 1960's, he was, or had been, a racist.
Law is process, not result. The legal process school transposed a formalism of interpretation managed openly by an elite into a model of formalism of argument among a wider group of players. The criticism launched against the process school by CLS and others was that the wider group was not representative enough and that the process was unjust. This was instrumentalism as strategy, not goal. It remains problematic due to the risks of performative reinforcement, but it is not at all the same -does not take the same form [except in extreme cases?]- as the instrumentalism of the legal realists. The realists aim at a scientific understanding of bias, working towards a "reasoned" result. This continues or returns us to the 19th century primacy of the law of an elite, united in a common purpose. What Tamanaha ignores here, and Posner doesn't is that common purpose is always anti-democratic. There can be no long term common purpose in democracy. What's common in democracy is the process of a government defined by representative debate.
All instrumentalism is problematic. As a free-standing doctrine instrumentalism is synonymous with ideology. And ideology is form: content is secondary. But ideology in the service of increasing citizen participation and in the service of its opposite are not the same thing, just as a military in service to a democracy is not a dictatorship. The relations of process and instrumentalism in a democracy are awkward. They need to be: democracies sometimes have need of an army. But the doctrines of law and economics are anti-democratic not just as strategy or means but end.
Law isn't a science or the search for truth, it's a game: a rarefied version of the game of politics. And there are no referees in either, only ranking players. When enough people believe themselves to by slighted by the process they will slight the process in return, the game will become rougher and will risk devolving into war. Idealists dislike democracy as relativist regarding truth. Scientists dislike the rule of law because it reminds them of Galileo and the Church. The Church argued for law and precedent, both still central to law and politics.
Tamanaha criticizes instrumentalism in the advocacy of trial lawyers, though trial lawyers, as professional advocates, are ideologically formalist. Again to Rumpole (and Nir Rosen.) Tamanaha the academic has too much respect for judges. He thinks our judges and philosophers should be wiser; but judges aren't the center of our justice system, lawyers are. And nobody likes lawyers until they need one.
Tamanaha argues from idealism, and "sincerity", rather than flexibility. He idealizes the role of responsible individuals rather than acknowledge the primacy, including the moral primacy, of adversarial process. more later.