
Brian Tamanaha (law, St. John’s), has written a provocative article called The Perils of Pervasive Legal Instrumenalism. He observes that “[a]n instrumental view of law–the idea that law is an instrument to achieve ends–is taken for granted in the United States, almost a part of the air we breathe.” Such a view, however, creates a serious problem:
[I]n situations of sharp disagreement over the social good, if law is perceived as an instrument, individuals and groups within society will endeavor to seize the law, and fill in, interpret, and apply the law, to serve their own ends. What results is a contest over law itself, a contest in which all sides seek to enlist the power of law on their behalf, spawning a Hobbsean conflict of all against all carried on within and through the legal order.
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