How an Instrumental View of Law Corrodes the Rule of Law

Abstract:     
Our legal tradition contains two fundamental pillars: the rule of law ideal, and an instrumental view of law. Although we take both for granted, in certain respects they are a mismatched pair. This article explores four specific points of tension between these two central streams of thought. The first two points relate primarily to legislative and executive actions, and the final two mainly to the judiciary. The first point focuses on the fact that the instrumental view of law came at the expense of the classical rule of law ideal that there are independent legal limits on law itself. The second point raises the implications of sharp disagreements over the common social good. The third point relates to the detrimental consequences on binding legal rules of purposive and pragmatic judicial reasoning oriented toward ends. The final point involves widespread doubts about the very possibility of judicial objectivity, doubts which undermine the notion of the rule of law. As the article demonstrates, these four points of tension raise critical problems that plague our contemporary legal culture. The ideas in this article are taken from a more exhaustive study of the implications of legal instrumentalism in modern law, published as Law as a Means to an End: Threat to the Rule of Law (Cambridge 2006).

Number of Pages in PDF File: 52

Accepted Paper Series