Jan 25, 2008

Instrumentalism and American Law

So far, most of the questions that readers have asked about the substance of Redeeming Law focus on the topic of instrumentalism. Law is, in fact, instrumental, they say—it is a social tool, and it is used to deter, encourage, and engineer behavior. That’s a fact, is it not? If so, why do I villify legal instrumentalism in the book and, in fact, blame it for the loss of the moral center in the legal academy (see pp. 32-33, e.g.)?

It is true, of course, that law is a tool for shaping behavior. So it is instrumental. Yet it is not primarily or essentially a tool to be used on people, behaviors, or institutions. Even though law can be a tool and we often treat it as tool, its essence, its nature, its first order purpose is not as a tool to be wielded. (Note here the passive voice, which points out a secondary problem: who is the righful wielder of the tool and who decides what end is to be sought?)

The late Harold Berman put it this way:

It is widely accepted in our law schools that law is essentially something that is made by political authorities, including legislators, judges, and administrators, to effectuate their policies; that law is essentially a means of social engineering; that law is essentially a pragmatic device, an instrument, used by those in power to accomplish their will. Of course, law is all that. But it is not solely that-- it is not essentially that. What is omitted from the prevailing view is a belief that law is rooted in something bigger than the people who hand it down -- that law is rooted in history and in the moral order of the universe.

HAROLD J. BERMAN, The Crisis of Legal Education in America, in FAITH AND ORDER: THE RECONCILIATION OF LAW AND RELIGION 333-34 (Scholars Press 1993) (cited in REDEEMING LAW, p. 24).

In short, the question is whether the essence, the nature, the primary purpose of law is instrumental: that is, something created by those in power to accomplish particular ends. The answer is no: it is not primarily, essentially, naturally a mere tool. When law is reduced to a pragmatic human artifact, it loses its very nature as something rooted, as Berman says, in the moral order of the universe.


  1. It seems to me that an important distinction must be made between the law as applied on a "micro" basis, if you will, and a more "macro" view. The law as applied in individual cases is very instrumental. In litigation especially the entire weight and machinery of the state is brought to bear on the parties to conform their behavior to some "goal." This is to be compared with the more rare invocation of some brooding musing about what "ought to be."

    In some ways this distinction may distinguish what usually happens in a trial court (micro) as compared to an appellate court (macro), but I think the focus of the concern is more on the appellate level where the thought process is increaasingly alienated from any ("objective," if you will) reference. In times past judges often perceived their role as "declaring the law," i.e. they made a concerted effort to discern the "ought" from nature, from custom, from convention--even religion. The belief was that right guidance existed and it was the task of the law maker (law declarer?) to discern it and declare it without reference to personal preference and agenda.

  2. This is a really interesting way to look at it, Duane. I'll need to chew on it a bit.

    In fact, I've always seen it exactly reversed: Instrumentalism rears its ugly head on the legislative level and political level most obviously, with less and less danger that it will appear as we move down to the real nuts and bolts.

    It's tougher for a judge, for example, to steer the outcome of a case when set policies and procedures are in place for trials. Usually trials and hearings are least vulnerable to power plays unrelated to just results-- to be sure, it happens, but "engineered" verdicts seem rare.

    On the other hand, on the appellate level, we see circuit courts simply subsititing will for law, according to the judges' (the annointed ones) views of what the result ought to be. They see their agenda as deciding how precedent to shape society (Roe v. Wade, Lawrence v. Texas, are easy to see it in) rather than deciding what a case, statute, or Constitution says should happen to each party. Law, at this level at its worst, is simply "policy decisions" and "legislative history" properly spun!

  3. I've thought about Instrumentalism as a confusion of Means and Ends. When used properly, law directs people from something bad to something good. In so doing, it effects a change in behavior.

    But that change in behavior is a means (or a consequence) of trying to steer people to the good.

    Instrumentalism strips away the something good (the end) and says, "Look! Here's something we can use to change people's behavior." They then teach, as the supreme end of law, that it's just a tool for changing behavior. Change it to what? Whatever you want.

    Another way to think about Instrumentalism is to compare law to sex. As created by God, sex has many different purposes: communication, fun, procreation, strengthening a marriage through intimacy (please don't read anything into the order, note that it's alphabetical). Sex does all these things.

    But if we take one particular purpose of sex and raise it above, or to the exclusion of, the other purposes, then sex doesn't work as well. If sex is only fun, then you have a porn society. If sex is only procreation, then you have the worst stereotype of the no-fun, close-your-eyes-and-wait-till-it's-over 50's.

    Instrumentalism takes one aspect of law, its ability to change behavior, and throws away the rest. It's like throwing away the steering wheel after finding the gas pedal.