Law and Legal Instrumentalism

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Law, a set of coherent rules and values within a society, is a human process. As such, it is crucial to approach its application within society in a pragmatic and realistic sense rather than a formal one, which views law as a set of mechanical and abstract principles. A legal realist approach on law takes into account extra-legal factors which help shape how law is used within a social context. This approach does not view the discipline of law as a literal set of principles to be formally detected and applied, but recognizes that the interpretation of law by legal actors is manipulated by situational factors.

BrianTamanaha in Law as a Means to an End: Threat to the Rule of Law examines how law, originally understood as an “instrumental to serve the social good”, is now just a mere instrument to further the goals and agendas of those who have access in its use (Tamanaha, 4). In essence, the notion of a common “social good” is no longer a qualifiable condition of law. In a complex, multi-faceted society, it is optimistic to presume that there is a true identifiable social good. Thus, lawyers, legislatures, judges and other legal actors are capable of using law to further their personal or collective political, social and economic interests. Tamanaha examines the ways in which legal actors, specifically cause litigants and judges, instrumentally exercise law. Thus, the term instrumentalism, a form of legal realism, is a pragmatic method which stems away from a formal application of law by critically examining cause litigation and judicial activism. Although law may be used as a mechanism to achieve a certain outcome, it is not used lawlessly and without merit as lawyers are advocating for a broad social cause and judges use law based on the merits of the constitution, given the benefit of time and postulated reason of their decision making.

Brown, a case regarding segregation within the United States emerged with lawyers stirring up lawsuits by informing African American citizens of their legal rights (Tamanaha 159). The process of instigating litigation was previously prohibited in common law practice; it was not professionally ethical for lawyers to set lawsuits in motion. However, it became increasingly common for lawyers to achieve change in public policy and legislation by fighting for a specific cause within the judicial arena. This method was forward-looking in that the courts became a battle field for interest groups seeking remedial change; the decision of the law was not necessarily to compensate for any harm inflicted in the past, but to change the policy in the future. This expansion from the traditional bilateral litigation no longer was to award the affected parties with compensation, but became a method to attain a reformative decree (Tamanaha 161). Eventually, cause litigation was an encouraged means to advance societal goals, in the sectors of environment protection, political reform and mental health, to name a few (Tamanaha 160).

Although such issues of public policy appear to benefit society as a whole, the intent of the cause lawyers who instigate such legal actions is questionable to Tamanaha. The lawyers in these situations are no longer amoral technicians of law, but individuals who seek their own ideological implementation (Tamanaha 156). The cause which lawyers strive towards becomes the primary concern, whereas the clients themselves are secondary, fulfilling the standing requirement before the court (Tamanaha 156). This can be very detrimental to the clients because they may not be aware of the consequences of their legal actions. For instance, Baehr v. Lewin, 1993 was a successful lawsuit brought forth to legalize same-sex marriage in Hawaii. Although the litigants won, the ultimate consequence was detrimental; following it was a series of amendments nation-wide which prohibited same-sex marriage (Tamanaha 167). The battlefield within the court became not a place to determine legal rights,...
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