Law & Society Blog

There have been two previous posts here discussing Brian Tamanaha’s article on the Pervasive Perils of Legal Instrumentalism. The first dealt with the transition from hidden to explicit instrumentalism, and the second dealt with the historical development of instrumentalist views of the law. I’d like to add a third post to make two quick observations: about positivism, natural law and instrumentalism, and about the symptoms of the current instrumentalist disease.

In the second half of his essay, Tamanaha looks at Contemporary Legal Instrumentalism, and discusses what he calls instrumental theories of law. Many of the current theories construe law in “consummately instrumental terms,” according to Tamanaha:

Law and economics … characterizes law as an instrument for maximizing wealth. Critical Legal Studies characterizes law as a (relatively autonomous) instrument of domination by the elite. Critical feminism characterizes law as an instrument of male patriarchy. Critical race theory characterizes law as an instrument of white domination.

I think that Tamanaha would agree that a theory of law that doesn’t stipulate the fixed pre-existence of law, but rather assigns a purpose or even just an effect of law in society, is instrumental in a different way than the ruling of an “activist” judge who disregards settled doctrine to achieve his or her political ends. That is to say, believing that the point of law is maximizing wealth or preserving the male patriarchy, doesn’t tell us to what extent judges should consider themselves bound by statutory language, precedent, and doctrine, and to what extent they may diverge from these restraints to take into account (political) conflicts of interest in society. In either law & economics or critical feminism we can still argue over who should make the law and who should apply it: Especially if a state were to pursue pernicious ends, like the oppression of women, such a state might not want its judges to stray from the chauvinistic and patriarchic path laid out in the (formal) law. Tamanaha, however, doesn’t draw this distinction and even takes his argument that the concept of law dictates the formalist/instrumentalist character of law, a step further. He equates positivism with instrumentalism:

The most influential essay on the rule of law in legal theory was written by Joseph Raz in the 1970’s, which asserts a purely instrumental, morally empty understanding of law: “A good knife is, among other things, a sharp knife. Similarly, conformity to the rule of law is an inherent value of law, indeed it is their most important inherent value. It is the essence of law to guide behavior through rules and courts in charge of their application… Like other instruments, the law has a specific virtue which is morally neutral in being neutral as to the end to which it the instrument is put.” (Joseph Raz, “The Rule of Law and its Virtue,” in: The Authority of Law (1979), 225-26.)

I don’t take this Razian positivism to be instrumentalist, even though Raz mentions the law as an instrument. After all, if “good or evil?” is not a useful question in determining what law is, then the only question left to ask of law is, “does law achieve what it sets out to do?” The virtue of law, Raz and other positivists assert, is its ability to guide behavior through rules. Binding judges to rules is formalism. Radical realism made the point that judges could not be bound to rules, because judges will always decide according to prejudice, socialization, and agenda. I read Raz to reject outright the claim that the application of laws could not or should not be restrained by the written rules laid down in statute and precedent. Positivism is not instrumentalism. By the same token, natural law isn’t formalism: in fact all natural-law theories to some degree prescribe the violation of formal law in favor of a substantive (moral) standard not laid down the formal law. Letting the end justify a breach of textual restraints: that’s instrumentalism (at least in a world where there is no consensus on what constitutes the public good).

To wrap up my thoughts on Tamanaha’s excellent article, here are a few words about cause litigation, one of the practical examples Tamanaha gives (the others being professional conduct rules for lawyers and judicial appointments). I agree, of course, that cause litigation is political and that it raises serious questions about the democratic process. Perhaps, though, it is not as new as we think. Consider the development of modern corporate and bankruptcy law in the late 19th century. The development was driven by highly sophisticated lawyers (especially the Cravath firm and its predecessors) representing the richest business interests and litigating to achieve specific social ends: The strengthening of limited liability, the reorganization of the debtor’s business at the expense of the creditors, and so forth. Within the space of 30 or 40 years, the legal landscape had been fundamentally altered, without an Act of Congress. This does not, of course, refute Tamanaha’s view that cause lawyering is one of the symptoms of the instrumentalist disease of our age: a “Hobbsean conflict of all against all transplanted into the legal arena.” Tamanaha cites the Hawaiian and Massachusetts Supreme Court cases, which recognized the right to homosexual marriage, as the result of instrumentalist cause litigation. He points to the instrumentalists backlash resulting in constitutional amendments in many states barring gay marriage. All this threatens to corrode the integrity of law, according to Tamanaha. But aren’t the gay-marriage cases rather an encouraging sign, from a systemic perspective (and apart from how I feel on the particular issue)? True, legal battles are costly and perhaps exclusionary; but they are public. If indeed the courts in Hawaii and Massachusetts rendered instrumentalist decisions, then the fact that there was an ensuing public debate, which resulted in democratic action to correct perceived-as-errant judicial decisions through constitutional amendment is encouraging. It means that the public is not entirely captive to the instrumentalist whims of the lawyers and the courts.

So here is my final word on the Pervasive Perils of Instrumentalism: The fact that law serves a purpose in society is not the same as the politization of the legal process. We can’t today assume that law is just there, an end in itself; like the state itself, law needs to have a purpose and serve that purpose. The concept of law is a different category than the political capture of our legal institutions.

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