The Perils of Pervasive Legal Instrumentalism
70 Pages Posted: 18 May 2005
In contemporary U.S. legal culture, the law is widely seen as an instrument to serve ends. Many legal theories construe law in instrumental terms (law is an instrument to maximize wealth, law is an instrument of male patriarchy, etc.). Law professors indoctrinate students to reason instrumentally using legal rules and policy arguments. Practicing lawyers manipulate legal rules and processes instrumentally when serving clients. Cause lawyers use litigation as an instrument to bring about social change. Judges increasingly engage in instrumental analysis when deciding cases. Judicial appointments are viewed instrumentally by groups within society dedicated to seating like-minded judges who will render decisions consistent with their preferred ends. Legislation and administrative regulations are seen as empty vessels that can be filled in and applied to achieve whatever ends might be desired. A law that is seen in purely instrumental terms has no integrity onto itself. It is simply a tool - a powerful tool - to be used in pursuit of the tasks or goals at hand.
So pervasive is an instrumental view of law today that we seldom recognize that it is relatively new - having become entrenched in the course of the late 19th and 20th Centuries - and we have forgotten how radically different it is from previous understandings of law. In a real sense, we have embarked upon a social experiment of the greatest magnitude, with no predecessors to offer guidance or to warn of pitfalls. There are now plentiful signs that this experiment may be ill-fated.
The core thesis of this essay is this: if the law is viewed in instrumental terms in a context of sharp disagreement over the social good, what will follow is a Hobbsean war of all against all that takes place within the legal order over control of the legal apparatus. Opposing groups within society will attempt to seize or co-opt the law in every context possible, and in every way possible, to enlist or wield it on behalf of achieving the ends they desire. Even those groups that might prefer to abstain from seizing the law are forced nevertheless to engage in the contest, if only defensively to keep it out of the hands of their less restrained opponents. Spiraling conflicts will ensue with no evident halting point or termination (short of exhaustion of resources or total victory by one side).
This essay, a written version of the inaugural Montesquieu Lecture delivered at the University of Tilburg, liberally mixes intellectual history and rational reconstruction to demonstrate this thesis. The first half of the essay is a historical exploration that begins with non-instrumental views of law and traces the emergence of instrumental views of law; the second half provides a brief survey of contemporary legal instrumentalism in several of the areas set forth above, offering examples and drawing out worrisome implications.
Keywords: law and humanities, law and culture, law and history, legal theory
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