Jurisprudence Book Review 120 Harv. L. Rev. 2113


Critiquing legal instrumentalism


Law as a Means to an End: Threat to the Rule of Law (LME) announces that the American legal system is off course, heading “toward turbulent waters with threatening shoals,” and that “[w]e must pay heed to the signs now”. The danger is to the very rule of law, and the source of the danger is legal instrumentalism, the idea that “law is a means to an end”. Instrumentalism is a cause, a byproduct, and a diagnostic signal of increasing conflict in the legal system, a dim jungle in which interest groups battle endlessly (in mutual self-defense) by manipulating legislatures, agencies, and courts; in which judges have mostly become freewheeling policymakers; and in which law professors and law students have mostly become cynical consequentialists.

LME’s central contribution is to raise important questions. What exactly is legal instrumentalism? What additional theoretical utility, if any, does that category have, over and above the better-known categories of consequentialism and pragmatism? What is or are the antonym(s) of legal instrumentalism, and what does a critic of legal instrumentalism end up defending? In most of what follows, I attempt to clarify the theoretical puzzles posed by LME’s critique.

My basic suggestion, in Part I, is that there is no such thing as “instrumentalism.” There is only a variety of instrumentalisms, offered in different theoretical contexts for different purposes. The merits of these different instrumentalisms must be evaluated locally rather than globally. Furthermore – this is a separate point, but a complementary one – there are several antonyms for legal instrumentalism that are materially different. It is no more coherent to praise all of them, just because they are not instrumentalism, than it would be to praise all of anarchism, fascism, and communism because they are alternatives to liberal democracy.

Subsequently, in Part II, I ask what prescriptions for the legal system follow from a critique of legal instrumentalism. I suggest that in a legal culture pervaded by instrumentalism (in all of its possible senses), there are powerful discursive pressures to justify an anti-instrumental view by reference to the beneficial effects that holding such a view will produce – by reference, that is, to the instrumental benefits of anti-instrumentalism. When combined with the claim that anti-instrumentalism requires certain beliefs, not merely certain actions, this is an intrinsically paradoxical stance; it leads, perhaps unavoidably, to a type of esoteric legalism, under which the theorist is quite willing to promote a false belief in the truth of anti-instrumentalism in order to secure the benefits of that belief. Unfortunately, however, there are well-known paradoxes of esotericism that make views of this sort self-defeating.

In the Conclusion, I suggest that despite the theoretical puzzles underlying LME, it possesses a thematic and emotional unity as a kind of legal dystopia. As such, its contributions should be assessed by literary as well as theoretical criteria.