Law as a Means

HART-FULLER AT 50, Peter Cane, ed., Oxford: Hart Publishing

Oxford Legal Studies Research Paper No. 8/2009

33 Pages Posted: 2 Mar 2009 Last revised: 13 Mar 2009

See all articles by Leslie Green

Leslie Green

University of Oxford - Faculty of Law; Queen's University - Faculty of Law

Abstract

This article defends legal instrumentalism, i.e. the thesis that law is distinguished among social institutions more by the means by which it serves its ends, than by the ends it serves. In Kelsen's terms, '[L]aw is a means, a specific social means, not an end.' The defence is indirect. First, it is argued that the instrumentalist thesis is an interpretation of a broader view about law that is common ground among theorists as different as Aquinas and Bentham. Second, the following familiar fallacies that seem to stand in the way of accepting the thesis are refuted: (1) If law is an instrument, then law can have no non-instrumental value. (2) If law is an instrument, then law always has instrumental value. (3) For law to be an instrument, there must be generic end that law serves. (4) If law is an instrument, law must be a neutral instrument. These claims are all wrong. In passing, the instrumentalist thesis is distinguished from other, unrelated, views sometimes associated with instrumentalism, including Brian Tamanaha's diagnosis of the vices of American law, and the views of those who think that jurisprudence is an instrument in the service of social ends.

Keywords: legal instrumentalism, legal philosophy, teleology, functionalism, Hans Kelsen, Lon Fuller, H.L.A. Hart, Brian Tamahana, jurisprudence, legal positivism

JEL Classification: K10

Suggested Citation

Green, Leslie, Law as a Means. HART-FULLER AT 50, Peter Cane, ed., Oxford: Hart Publishing, Oxford Legal Studies Research Paper No. 8/2009, Available at SSRN: https://ssrn.com/abstract=1351304

Leslie Green (Contact Author)

University of Oxford - Faculty of Law ( email )

Balliol College
Oxford
Oxford, UK, OX1 3BJ
United Kingdom

Queen's University - Faculty of Law ( email )

Kingston, Canada, Ontario K7L3N6
Canada

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
1,923
Abstract Views
9,215
rank
9,767
PlumX Metrics