This article defends legal instrumentalism, i.e. the thesis that law is distinguished among social institutions more by the means by which it serves its ends, than by the ends it serves. In Kelsen's terms, '[L]aw is a means, a specific social means, not an end.' The defence is indirect. First, it is argued that the instrumentalist thesis is an interpretation of a broader view about law that is common ground among theorists as different as Aquinas and Bentham. Second, the following familiar fallacies that seem to stand in the way of accepting the thesis are refuted: (1) If law is an instrument, then law can have no non-instrumental value. (2) If law is an instrument, then law always has instrumental value. (3) For law to be an instrument, there must be generic end that law serves. (4) If law is an instrument, law must be a neutral instrument. These claims are all wrong. In passing, the instrumentalist thesis is distinguished from other, unrelated, views sometimes associated with instrumentalism, including Brian Tamanaha's diagnosis of the vices of American law, and the views of those who think that jurisprudence is an instrument in the service of social ends.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Defending the Possibility of a Neutral Functional Theory of Law.Kenneth M. Ehrenberg - 2009 - Oxford Journal of Legal Studies 29 (1):91.
Positivism And The Inseparability Of Law And Morals.Leslie Green - 2008 - New York University Law Review 83:1035--1058.
The Art of Law and Other Essays Juridical and Literary.Jingxiong Wu - 1936 - Commercial Press.
Added to index2009-03-03
Total downloads28 ( #180,902 of 2,158,310 )
Recent downloads (6 months)1 ( #355,837 of 2,158,310 )
How can I increase my downloads?