Download this Paper Open PDF in Browser

Law as Instrumentality

73 Pages Posted: 14 Apr 2017 Last revised: 15 Apr 2017

Jeremiah A. Ho

University of Massachusetts School of Law

Date Written: March 1, 2017

Abstract

Our conceptions of law affect how we objectify the law and ultimately how we study it. Despite a century’s worth of theoretical progress in American law—from legal realism to critical legal studies movements and postmodernism—the formalist conception of “law as science,” as promulgated by Christopher Langdell at Harvard Law School in the late-nineteenth century, still influences methodologies in American legal education. Subsequent movements of legal thought, however, have revealed that the law is neither scientific nor “objective” in the way the Langdellian formalists once envisioned. After all, the Langdellian scientific objectivity of law itself reflected the dominant class, gender, power, and race of its nineteenth-century progenitors. Thus, by sustaining the illusion of scientific objectivity, the continued application of Langdellian pedagogy distorts our understandings of law and abridges individual explorations of pluralism, subjectivity, justice, and empowerment. Such inaccurate but prevailing notions of neutrality in law leads to both disenchantment and hierarchy in practice, but, worse, it also distracts from meanings of law that would otherwise have led to empowerment and critique. In this way, legal scholars have clamored for a post-Langdellian legal conception to enable us to reach more relevant and emboldened meanings in law.

Prompted by such calls amidst the post-Recession crisis in the American legal academy, this Article offers such a new conception for theorizing meanings in law by locating law within its instrumentalities. “Law as instrumentality” obtains meaning by accepting law’s fragmentation and then observing, from fragmentation, the characteristics of its agency. The law is not a science; but it does embody human-made qualities of agency. This new instrumentality conception studies law’s deliberate aesthetics as a way to explore law ontologically and critique its goals, its devices, its intentions, its significances, and its teleologies. From this conception, a broader methodology can arise to bring about a more relevant and empowering understanding of law to those who render law to life.

Keywords: justice, teaching, philosophy, realism, formalism, Langdell, law schools, postmodernism, american legal history & theory, methodology, instrumentality

Suggested Citation

Ho, Jeremiah A., Law as Instrumentality (March 1, 2017). Marquette Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2952077

Jeremiah A. Ho (Contact Author)

University of Massachusetts School of Law ( email )

333 Faunce Corner Road
N Dartmouth, MA 02747
United States
508-985-1156 (Phone)

Paper statistics

Downloads
122
Rank
194,321
Abstract Views
462