In “The Perils of Pervasive Legal Instrumentalism,” Brian Tamanaha paints a bleak picture of how instrumentalism has corroded the very legitimacy of the law.
In situations of sharp disagreement over the social good, if law is perceived as an instrument, individuals and groups within society will endeavor to seize the law, and fill in, interpret, and apply the law to serve their own ends. What results is a contest over the law itself, a contest in which all sides seek to enlist the power of law on their behalf, spawning a Hobbesean conflict of all against all carried on within and through the legal order. (Id., 2).
Interestingly, Tamanaha’s critique is not directed against instrumentalism per se, that is, against the view that law is a tool, a means to achieve ends. For in a later part of the essay, he writes:
[L]egal instrumentalism, and the battle that it has generated, threatens to corrode the integrity of the law [...] A distinguishing characteristic of law has always been that it is a manifestation of public power that is to be wielded in furtherance of the public good. The legitimacy of the law, its claim to obedience, is based upon this claim. Without this characteristic law is raw coercion. If the law is an empty vessel, an instrument to be filled in and applied to the advantage of any group that successfully controls it, then law will involve the application of public power to private advantage, in the pursuit of a private agenda. When that is the case, it is not obvious why there would be an obligation to abide by the law. If more and more people come to hold this view, the law may lose its widespread routine voluntary compliance that it depends upon. (Id., 65).
What’s corrosive is not instrumentalism, but rather the absence of a single and identifiable public good: “
the public good.” (My italics.) Wielding the power of the law “in furtherance of the public good” is legitimate and non-coercive. Wielding the power of the law “in the pursuit of a private agenda,” lacks legitimacy and is coercive. Thus, Tamanaha ultimately bemoans the loss of unity, the lack of consensus, with the implied understanding that consensus is a source of legitimacy (
volenti non fit injuria).
The most obvious problem with this argument is the assumption that there is (or has been) a consensus that served as an acceptable proxy for “the public good.” What if the unity that rendered legitimacy to the law in ages past was the result of a massive selection bias? What if the “special interests” that suddenly engaged in the “contest over the law itself” were simply the voices of those that had been silenced before? This should not strike anyone as a particularly outlandish claim. Much of the “pervasive instrumentalism” that ensued in the early 20th Century and with increasing traction after the 1950s has been the result of workers, women, gays, ethnic groups, and other special interests, strategically pursuing their agendas through the courts. Their voices indeed disturbed the prevailing consensus, but only because much of what counted as “the public good” had been defined by a rather select body public, largely composed of well heeled, white, heterosexual men. (This is not to say that the entire legal system produced by that select public was unfair, exclusionary, or intentionally biased, even though clearly parts of it were and parts of it still are. My point is that even the most enlightened person necessarily has blind spots. And while the resolve to be impartial is certainly much better than open bias, it is not entirely sufficient to eliminate bias.) The successful pursuit of special interests by previously invisible constituencies led to the creation of “new rights.” Such new rights altered the societal power structure, which, in turn, forced the traditional beneficiaries of the old order to emerge from the background, step into the open and state their claims explicitly. (The open restatement of such claims accounts for much of the conservative counterrevolution.)
The real shift, therefore, has not been one from non-instrumentalism to pervasive instrumentalism, but rather from pervasive, background instrumentalism to explicit instrumentalism. In the 1960s and 1970s, any consensus on the surface gave way to open normative dissent. As a result, definitions of law increasingly came to rely on formal elements of proper promulgation and social efficacy. But the charge of value-blindness and relativism that was levied against legal realism, which Tamanaha so vividly describes, soon led to the formal inclusion of non-legal normative standards, usually in form of a rule of reason or similar pragmatic balancing tests. Of course, the contents of what constitutes reasonableness could no longer be defined with universal appeal. The resulting pragmatic definition of law does not fit the positivist mold, because it requires the inclusion of an extra-legal normative standard. Law that deviates from the standard in an outrageous manner is not law. But as there is no consensus as to the extra-legal standard, the pragmatic non-positivism remains strangely undefined, which permits conservative and liberal writers alike to claim the pragmatist label.
In the opening paragraphs of his essay, Tamanaha states that there are two possible views with respect to the pervasiveness of legal instrumentalism. (Id., 2-3). One is that the law did not change its nature, that law has always been instrumental, a fact that has only lately been made explicit. Another is that the law changed its nature, that law at some point in the past the law was non-instrumental and that it has become instrumental. But there is a third possibility, namely that the change from implicit to explicit instrumentalism changed the nature of the law, much in the same manner that the process of secularization changed the nature of religion. The internal point of view is no longer the default position, much less the only position that one can assume. Rather, assuming the internal point of view, and with it the binding force of legal norms, requires an affirmative and increasingly explicit step of suspending disbelief. It may well be that some of the recent variants of textualism serve precisely that function. Textualism is, of course, a strange and willful reductionism. But for all its methodological shortcomings, textualism signals a commitment to taking law seriously, a heightened sensibility to the semantic restraints on the legal discourse imposed by the law, seen from an internal point of view.
I am curious to see what Tamanaha will propose as an alternative to instrumentalism in his forthcoming book on that topic – assuming that’s really what he is after.
NOTE (8/3/06): For whatever reason, spambots like this post, so I have turned off the comments. Please drop us an email if you would like to post a comment. Sorry for the inconvenience. Hanno.
[tags]philosophy, jurisprudence, instrumentalism[/tags]
