The formal rule of law and an instrumental approach

In the Law as a Means to an End, professor Brian Tamanaha discusses the relationship between the formal rule of law and instrumentalism in law in America. From his perspective, the formal rule of law and an instrumental approach are complementary in the level of legislation because both of them hold law is an empty vessel that can consist of any content whatsoever to serve any end desired.[1] However, in the process of judging, these two elements come into conflict for the reason that an instrumental attitude to law urges judges to pay attention to social consequences when deciding cases, but the formal rule of law requests judges to make decisions according to rules.[2] This essay would scrutinize this thesis.

According to professor Tamanaha’s, instrumentalism in law implies such an attitude that we treat law as a means to an end.[3] This end is a continuum varying from common good to private interest, which we could not discern clearly.[4] In the contemporary context, this attitude originates from the legal process school, which emphasizes formal aspects of law on one hand and advocates purposive interpretation of law on the other hand.[5] In its vein, every legal problem is a problem of purpose, of means to an end.[6] Scholars advocating this theory rejected political ideologies and believed that good procedures would render the law good.[7] However, with the turmoil of society in 1960s and 1970s in America, the legal process school came to an end, but its instrumental approach to law remains until today. In the intellectual history of jurisprudence, economic analysis, critical legal study, law and society movement, legal pragmatism all adopted this approach.[8]

The formal rule of law is an ideal advocating the government must abide by legal rules set out publicly in advance.[9] Similar with Lon Fuller, who was a member of the legal process school, Joseph Raz provided an influential instrumental understanding of law through his elaboration of the rule of law. He put up with two points: the one is law is morally neutral, and could be used to serve any end like a knife; the other is law is a series of rules we should conform to[10]

From professor Tamanaha’s standpoint, the formal rule of law interacts with instrumentalism in law in double ways. On one hand, they are complementary in the sense that both of them hold law is a means to an end. On the other hand, they are antithesis because proponents of an instrumental approach to law would decide cases with respect to their social consequences, but advocators of the formal rule of law would consider that the rule provides a sufficient and obligatory reason for judicial decisions.[11]

In fact, the story is more complex because both approaches would take into legal rules and social consequences or ends into consideration. Thus, the core difference between them is their opposite attitudes towards the consideration of social consequences or ends. The advocators of the formal rule of law would treat this consideration as exceptional, but judges with instrumentalist attitude would think this consideration is routine.[12] Extremely speaking, the former approach is faithfully law-abiding while the latter is just a decision in the guise of law, even if the consequences and external forms of them are the same.[13] In the long run, a system of faithfully law-abiding decisions would be more certain and predicable than one of decisions in the guise of law.[14] Thus, the difference between these two approaches may be subtle, but with time going by, the consequences resulting from them could be totally different, even opposite.

Besides, social atmosphere or context would play an important role in the interaction between the formal rule of law and instrumentalism in law. The postmodern mentality and misunderstanding about the Realist position would lead to people to give up the belief that judges can abide by the legal rules and make decisions without their own subjective preferences. However, a judge will be bound by the law only to the extent that the judge believes it is possible to be bound by the law and sees it as his or her solemn obligation to render legally bound and determined decisions. Without this belief, judges would not treat being bound by law as the particular virtue of judging. Thus, the loss of this belief makes instrumental approach a fatal threat to the rule of law.[15]

Through the sketch above, two points can be made. First, the formal rule of law and instrumentalism in law could be either complementary or in conflict in different levels; Second, it is the social context, not the thoughts alone, decides the function of a theory in history.

[1] Brian Tamanaha, Law as a Means to an End: Treat to the Rule of Law, Cambridge University Press, 2006, p.227.

[2] Id., p. 228.

[3] Id., p. 1.

[4] Id., pp. 215-218.

[5] Id., p. 108.

[6] Id., P. 103.

[7] Id., pp. 107-108.

[8] Id., 118-126.

[9] p. 130.

[10] Id.

[11] p. 228.

[12] p. 233.

[13] p. 242.

[14] p. 243.

[15] p. 244.