becket saunders
07-30-2005, 07:55 PM
From the text:
The shift I identify herein is one of emphasis and proportion: instrumental and non-instrumental views of law have circulated together, and continue to do so, but a sea change has occurred away from predominantly non-instrumental views of law toward predominantly instrumental views.
Finally, I do not assert that the Hobbsean war within law articulated above is inevitable. Rather my contention is that the logic of the situation portends such a scenario and that plentiful indications of it are already evident.
A deceptively complex question exists about the underlying nature of the shift to pervasive legal instrumentalism, which ought to be kept in mind in the course of this essay.
Consider two distinct possibilities. One possibility is that law has always been instrumental in nature, as a Marxist or critical theorist might assert, that law has always served elite or particular interests, although this partiality was concealed beneath a noninstrumental guise. According to this view, the core change entailed in modern legal instrumentalism is making explicit and known to everyone what covertly was happening all along. This is a very real change with real consequences, but it is not a change from a fundamentally non-instrumental law to an instrumental law.
A second possibility is that law was truly non-instrumental in a core sense, so the shift to legal instrumentalism is a change in the underlying character of law. The law used to consist of content that was given or predetermined in a manner that was not entirely subject to or determined by the desires of any particular individuals or groups. The law was, in some sense, autonomous or semi-autonomous, with its own integrity.
Under this latter view, the change represents an emptying out of law that renders it a ready coercive power amenable to the will and desires of whoever effectively seizes it.
The shift I identify herein is one of emphasis and proportion: instrumental and non-instrumental views of law have circulated together, and continue to do so, but a sea change has occurred away from predominantly non-instrumental views of law toward predominantly instrumental views.
Finally, I do not assert that the Hobbsean war within law articulated above is inevitable. Rather my contention is that the logic of the situation portends such a scenario and that plentiful indications of it are already evident.
A deceptively complex question exists about the underlying nature of the shift to pervasive legal instrumentalism, which ought to be kept in mind in the course of this essay.
Consider two distinct possibilities. One possibility is that law has always been instrumental in nature, as a Marxist or critical theorist might assert, that law has always served elite or particular interests, although this partiality was concealed beneath a noninstrumental guise. According to this view, the core change entailed in modern legal instrumentalism is making explicit and known to everyone what covertly was happening all along. This is a very real change with real consequences, but it is not a change from a fundamentally non-instrumental law to an instrumental law.
A second possibility is that law was truly non-instrumental in a core sense, so the shift to legal instrumentalism is a change in the underlying character of law. The law used to consist of content that was given or predetermined in a manner that was not entirely subject to or determined by the desires of any particular individuals or groups. The law was, in some sense, autonomous or semi-autonomous, with its own integrity.
Under this latter view, the change represents an emptying out of law that renders it a ready coercive power amenable to the will and desires of whoever effectively seizes it.