On the Instrumental View of Law in American Legal Culture

Abstract

This brief essay - a contribution to the forthcoming collection, On Philosophy in American Law - plays out the implications of legal realism in contemporary legal thought. The essay tracks the progress in the 20th century of the fundamental notion that law is an instrument to serve the social good. It shows that the first half of this notion (law is an instrument) became entrenched in every aspect of legal thought while the second half of this notion (the social good) became increasingly problematic. The result, this essay argues, is that the law itself is now a battleground in which groups and interests fight to seize control of coercive legal power and wield it in pursuit of their own interests. This essay is a synopsis of the argument developed in Law as a Means to an End: Threat to the Rule of Law (Cambridge University Press 2006).