The instrumental justice of private law
| Abstract | Instrumentalists and deontologists have long battled for an exclusive theory of private law. The instrumentalists have argued that private law is merely a means to achieving any number of political or social ends. Deontologists, by contrast, have contended that the law seeks only the moral end of justice and cannot be used for anything else. In this article, I critique these extreme positions and offer an intermediate theory called "instrumental justice." I show that the absolute instrumental view is elusive, illusory, and illiberal, while the absolute deontological view is incoherent, implausible, and in one critical respect, impossible. Instrumental justice avoids these problems by combining the best elements of both perspectives. This composite theory acknowledges the inherent instrumental nature of private law, but establishes justice as its central, organizing idea. So framed, instrumental justice's primary function is to create rights that serve as tools for marking and mapping important interests, and for defending and vindicating those interests when they are threatened or impaired. Rights, in turn, both imbue the law with the moral credibility necessary to perform secondary social functions, and prevent it from pursuing these functions at the expense of its core principles. | |||||||||
| Keywords | No keywords specified (fix it) | |||||||||
| Categories | ||||||||||
| Options |
|
|||||||||
Download options| PhilPapers Archive |
Upload a copy of this paper Check publisher's policy on self-archival Papers currently archived: 5,875 |
| External links |
  Try with proxy. |
| Through your library | Only published papers are available at libraries |
Similar books and articlesRowan Cruft (2010). On the Non-Instrumental Value of Basic Rights. Journal of Moral Philosophy 7 (4):441-461.
H. Sheinman (2003). Tort Law and Corrective Justice. Law and Philosophy 22 (1):21-73.
Hans Kelsen (1957/2000). What is Justice?: Justice, Law, and Politics in the Mirror of Science: Collected Essays. Lawbook Exchange.
Garrett Barden (2010). Law and Justice in Community. Oxford University Press.
Mark Bennett (2011). Hart and Raz on the Non-Instrumental Moral Value of the Rule of Law: A Reconsideration. Law and Philosophy 30 (5):603-635.
Analytics
Monthly downloads
Sorry, there are not enough data points to plot this chart.
|
Added to index2009-04-02Total downloads2 ( #234,778 of 556,895 )Recent downloads (6 months)0How can I increase my downloads? |
My notes
Discussion
