Is procedure instrumental?
| Abstract | Clearly procedure plays some important role in accounts of legal authority, a concept that depends on the possibility of obedience to substantively disagreeable legal commands. But is the role of procedure intrinsic - commanding obedience without regard to the outcomes it produces - or instrumental? On an epistemic-guidance account of legal authority (like Joseph Raz's service conception), the instrumental nature of procedure is obvious: Legal procedures confer authority by generating better outcomes than legal subjects could achieve on their own. On a broadly Hobbesian dispute-resolving account, however, procedure appears to have entirely intrinsic value, as a focus on outcomes seemingly would recapitulate whatever dispute law is supposed to resolve. This paper contends that, despite this impression, procedure can in fact be instrumental on a dispute-resolving account of legal authority, albeit on a systemic rather than an ad hoc basis - a possibility with potentially important consequences for the legitimacy of legal procedures. | |||||||||
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