< meta name="DC.Date.Valid.End" content="20050825"> Amendment Nine: Instrumentalism v. Formalism (or Truth v. Beauty)

Wednesday, May 25, 2005

Instrumentalism v. Formalism (or Truth v. Beauty)

I've been following a little debate on legal instrumentalism and its drawbacks versus legal formalism and its drawbacks. I'm amused by this debate. Amused and alarmed. Lawrence Solum opens things up with a post detailing Brian Tamanaha's critique of instrumentalism. The pertinent quotes can be found in the abstract, but let me offer my own synopsis. Legal instrumentalism is viewed as the prevailing legal theory of the day. But the author cautions us to realize it hasn't always been so, in the past, formalism was the dominant epistemological framework for jurisprudence (I agree with this, but doesn't everyone know that?). Then the author argues that if the instrumentalist experiment, where law is viewed as an instrument for social change, what (and I"ll quote here) results is:
a Hobbsean war of all against all that takes place within the legal order over control of the legal apparatus. Opposing groups within society will attempt to seize or co-opt the law in every context possible, and in every way possible, to enlist or wield it on behalf of achieving the ends they desire. Even those groups that might prefer to abstain from seizing the law are forced nevertheless to engage in the contest, if only defensively to keep it out of the hands of their less restrained opponents. Spiraling conflicts will ensue with no evident halting point or termination (short of exhaustion of resources or total victory by one side).

Depressing huh? First, let me just say this, to think that anything worth a damn has ever been anything but a "Hobbsean war of all against all" is just naive. Really folks, don't they require people to read anymore? Where I went to college, they did, and we had a name for people who used this sort of pessimism as an argument, "the world is flat club." As in, "yes you are right, the world is flat. Now run along and fall off why don't you?"

Second, and more importantly, in sum, the author, and Solum in his lexicon, argue that legal realism is undone by its own conceit. Its turned into a slippery slope of relativism. Here is where the rising tide of legal formalists, and the dominant crowd of liberal apologists, miss the boat entirely. Legal realism's critique is to the entire study of jurisprudence exactly what Nietzsche's critique is to the entire study of philosophy: a gutt check so severe, of such dramatic proportion, that the entire body of thought may not ever recover.

What makes this critique so important is not its substance either. No one cares, or at least they shouldn't care, what Nietzsche's personal philosophy is or was. Just as no one cares, nor should they care, what was the political agenda of Karl Llewellyn. The critique is so devasting because of its simplicity, its elegance, its inability to be trumped by a more simple explanation. Law is veiled power, so say the realists. And philosophy is veiled power as well, so says Nietzche. How can either discipline ever bounce back from this?

The doom and gloom Tamanaha sees isn't "instrumentalism", its the last gasps of law itself. The rise in law and economics shows where the "law" is heading, to the statistician's corner where bean counters determine legal outcomes based on scientific principles and social engineering precepts. Law, my friends, is dying. And just like its precursor, philosophy, it is being replaced by science proper. Until legal theorists start realizing this, and stop trying to escape to some alternate reality like formalism, they are doomed to repeat the silly dance philosophy departments in America play with Kant every day: stripping content out of contentless thought and championing the most empty freedom ever found.

The realist critique allows political reality to consume law, and legal theorists are left running for the formalist foothills. But these offer no sanctuary, legal formalism is as impotent a jurisprudence as no jurisprudence at all. Those theorists working to pin the law back to its natural beginnings are the only ones trying to save us from anarchy, those theorists debating instrumentalism versus formalism are fiddle players at the inferno. Sorry, but it needed to be said. More fiddle tunes can be heard here, and here.