The many uses of law: Interactional law as a bridge between instrumentalism and law’s values
Introduction: Law is not there for its own sake. If we agree that law is important for society, there are still numerous ways in which that claim can be made, giving rise to very different ideas of law and different ideas of its relationship to society generally. In this chapter, I focus on one particular perspective on this claim, that of legal instrumentalism. Legal instrumentalism has a bad name: it is criticised for reducing law to a policy instrument for external political or economic goals. Here, I consider whether the idea of law's instrumentality can also be interpreted differently, in a way which is not reductionist. I do this by taking a particular theoretical perspective, combining legal interactionism with pragmatist ideas. By seeing law as emerging from the interactional expectancies of people towards one another, law is conceptually based on horizontal relationships (building on the theory of Lon Fuller). In this chapter, I argue that this horizontal orientation can provide a specific version of an instrumental view of law because it pluralises law's instrumentality. Law is no longer seen as a policy instrument in the hands of authorities, but as a tool for everyone who makes use of it (making use of John Dewey's pragmatism). To substantiate such a bottom-up account of law as an instrument, I present an argument on how the purposive activities of people in legal practices shape law as an interactional phenomenon. Finally, I argue how law as a value-oriented practice relates to purposive activities and explore how law as set by official authority figures in, limits or enables, different uses ordinary people make of law, connecting horizontal and vertical dimensions of law. The purpose of this chapter is to present and elaborate a particular theoretical perspective that is pluralist in a number of ways and can be considered a form of pluralist jurisprudence. As jurisprudence, the theory puts forward a conception of the nature of law. Thus, this chapter is a contribution to debates on the concept of law.
|Persistent URL||dx.doi.org/10.1017/9781316875056.006, hdl.handle.net/1765/108996|
Taekema, H.S. (2017). The many uses of law: Interactional law as a bridge between instrumentalism and law’s values. In In Pursuit of Pluralist Jurisprudence (pp. 116–135). doi:10.1017/9781316875056.006