The Instrumental Justice of Private Law

Abstract

Instrumentalists and deontologists have long battled for an exclusive theory of private law. The instrumentalists have argued that private law is merely a means to achieving any number of political or social ends. Deontologists, by contrast, have contended that the law seeks only the moral end of justice and cannot be used for anything else. In this article, I critique these extreme positions and offer an intermediate theory called "instrumental justice." I show that the absolute instrumental view is elusive, illusory, and illiberal, while the absolute deontological view is incoherent, implausible, and in one critical respect, impossible. Instrumental justice avoids these problems by combining the best elements of both perspectives. This composite theory acknowledges the inherent instrumental nature of private law, but establishes justice as its central, organizing idea. So framed, instrumental justice's primary function is to create rights that serve as tools for marking and mapping important interests, and for defending and vindicating those interests when they are threatened or impaired. Rights, in turn, both imbue the law with the moral credibility necessary to perform secondary social functions, and prevent it from pursuing these functions at the expense of its core principles.

Keywords: Instrumentalism, Consequentialism, Deontology, Pragmatism, Autonomism, Justice, Distributive Justice, Rights, Torts, Contracts, Criminal Law, Behavioral Science, Deterrence, Law and Economics, Law and Politics, Reasonableness Standard, Duty, Strict Liability

JEL Classification: K12, K13, K14, K40, K41, K42