Introduction

In chapters 1 and 3, I briefly discussed the decision of the House of Lords in December 2004 which seems to show that judges in the United Kingdom have put a rule-of-law spine into the adjudication of national security – A v. Secretary of State for the Home Department. As before, I will refer to it as Belmarsh, as it concerned the challenge by men held in indefinite detention in Belmarsh prison to the statutory provision which authorized their detention. Belmarsh might seem to put a stop to the trend, exemplified in the House of Lords' decision in Secretary of State for the Home Department v. Rehman, discussed in chapter 3.

As we saw, Rehman adopts a stance on deference in matters of national security which proceduralizes judicial review of national security. In so doing, it substitutes for the claim that review is unavailable because of the political nature of the decision – that the decision is not justiciable – the claim that a kind of deference is appropriate which allows the executive to do pretty well what it likes. This approach to deference empties review of almost all substance, thus giving to the executive the ability to claim that it is operating under the rule of law while it is in fact largely free of legal constraints.

Recognizing rationality

It is still the case today that the most sustained attempt to understand judicial review for jurisdictional error as a legal phenomenon occurred in a series of articles, starting in the 1920s and finishing in the 1970s, by D. M. Gordon, a lawyer who practised in British Columbia. By legal phenomenon, I mean an attempt to understand such review within a coherent account of the rule of law. For it is easy to understand the political and other rationales for delegating authority to officials to implement public programmes – rationales to do with complexity, efficiency, and expertise. It is also easy to understand the reasons why governments think it necessary to protect public officials from the kind of judicial meddling which undermines the delivery of the statutory programmes the officials are charged with administering. In chapter 2, I discussed one of the main vehicles for protection, the privative clause which tells judges to refrain from review.

But as we have seen, there are significant problems from the perspective of the rule of law for understanding the privative clause, which is why the evisceration approach developed in the United Kingdom, the approach which we saw simply empties a privative clause of all meaning. And, as we have also seen, the Australian attempt to take the privative clause seriously, as a legislative expansion of administrative jurisdiction, perches uneasily between evisceration and a rather different approach, the Canadian deferential approach.

Almost all of the major theoretical and empirical perspectives toward law that circulate today developed during the 1960s and 1970s, or have roots in that period, and characterize law in fundamentally instrumental terms. The economic analysis of law, critical legal studies and their progeny, the law and society movement, legal pragmatism, and the formal version of the rule of law, each in central respects builds its understanding around the proposition that law is a means to an end. Many of these schools of thought also take an instrumental view toward their own scholarship and toward the scholarship of others. That is, as a consequence of general skepticism about the capacity to achieve objectivity, there is a widespread sense that theories of law, and knowledge about law, are inevitably colored by politics, akin to the assumption that politics influences judging.

These various schools of thought are given an abbreviated sketch, in the order just set out, limited to revealing their core instrumental components. This narrowly focused survey shows how instrumentalist views permeate theoretical understandings of law. At the close of the chapter is a brief mention of the non-instrumental theories of law that hang on against the tide.

Economic analysis of law

The starting assumption of economic analysis of law is “that the people involved with the legal system act as rational maximizers of their satisfaction.”

An instrumental view of law is so taken for granted today that it rarely evokes comment, but in the 1960s and 1970s its novelty in legal education was recognized and prompted expressions of concern. A brief discussion of the legal process school will set the stage for this pivotal period in legal academia. Legal process thought represented the mainstream consensus view of law within the legal academy in the period from the Realists through the 1970s. Although it fell into rather sudden disfavor decades ago, for reasons that will be recounted, it has been claimed, with justification, that legal process thought “has dominated legal scholarship for the last fifty years.”

The legal process approach accepted many of the insights of Legal Realism while offering answers to its most threatening implications. Legal Realism was silenced by the collective reaffirmation during World War II of the goodness of the American legal system in contrast to the evil legal regime of Nazi Germany. Law in the United States is more than raw state power, many argued. The need for moral and legal legitimacy was equally pressing at the height of the Cold War, faced with the threat of Soviet communism. For the reasons elaborated at the end of Chapter 4, however, relativist views had spread within intellectual circles during the 1930s and 1940s, making it difficult to identify and defend universal or objective moral or legal principles.

Democracy became the defining characteristic that distinguishes a free society from a totalitarian one.

Legal historians and theorists are in nearly complete agreement that the non-instrumental views of the common law described in the preceding chapter held sway through the eighteenth century. They agree also that the instrumental view of law took hold in the course of the twentieth century. This generally accepted time frame, however, leaves large unanswered questions with respect to the nineteenth century.

Many legal historians appear to accept that legal instrumentalism flowered in the United States in the first quarter of the nineteenth century and lasted until the mid-nineteenth century, when it was supplanted by a lengthy non-instrumental period running from the Civil War until after the turn of the century. The leading source of this chronology of the emergence and subsequent eclipse of instrumental views of law is Morton Horwitz's Transformation of American Law (1977). Horwitz begins his account positing the non-instrumental conception of law: “In eighteenth century America, common law rules were not regarded as instruments of social change; whatever legal change took place generally was brought about through legislation. During this period, the common law was conceived of as a body of essentially fixed doctrine to be applied in order to achieve a fair result between private litigants in individual cases.”

According to Horwitz, after the Revolution, “merchant and entrepreneurial groups” forged an “alliance with the legal profession to advance their own interests through a transformation of the legal system.”

Political scientist Nathan Glazer, in 1975, asked whether the U.S. polity had permanently shifted “Towards an Imperial Judiciary?” The “Court is committed to an activist posture, with great impact on various areas of life. … [and the Court is] simply legislating its views on difficult problems.” In the quarter century since Glazer posed his question, the assertive stance of courts has increased, according to many observers. Armed with the power of judicial review, and prompted by cause litigation, by rights cases, and by the interpretation of far-reaching legislation, judges increasingly make decisions that penetrate all aspects of social life. At the end of the twentieth century, said Robert Bork, “It is arguable that the American judiciary – the American Supreme Court, abetted by the lower federal court and many state courts – is the single most powerful force shaping our culture.” There are reasons to doubt that courts are as efficacious in this effort as Bork suggests, but there is no doubt that his view is widely shared.

Conservatives have been exercised at courts for decades for these actions. To the delight of conservatives, of late, liberals have also begun to protest the assertiveness of courts. Since the 1960s, liberals have reposed faith “in the courts as vehicles for social change.” Now that conservative appointments appear likely to dominate the federal judiciary for the coming generation, prominent liberals have begun to join conservatives like Bork in proposing that the power of judicial review be curtailed or abolished.

The first sentence of the rules governing the legal profession declares that the core of lawyering is a means (lawyer)–ends (client) relationship: “a lawyer, as a member of the legal profession, is a representative of clients.” It mandates that “a lawyer shall abide by a client's decisions concerning the objectives of representation.” Confirming this avowedly instrumental connection, the rules caution that “A lawyer's representation of a client … does not constitute an endorsement of the client's political, economic, social or moral views or activities.” The implicit point is that serving as a tool to advance a client's perhaps immoral ends does not make the lawyer immoral. Legal practice is infused with an additional sense of instrumentalism: lawyers take an instrumental attitude toward law itself, wielding and manipulating legal rules and processes to advance their clients' goals. Legal rules and mechanisms are the tools of their craft, what they operate with to get things done. Furthermore, many lawyers see the practice of law instrumentally as a means to their own enrichment and wield and manipulate legal rules and processes to further their personal ends.

Practicing lawyers have long acted instrumentally in the three respects just mentioned. The shift away from non-instrumental views of law chronicled in earlier chapters relates specifically to views expressed the legal elite: leaders of the bar, prominent judges, and legal academics. That does not mean these developments had no effect on legal practice.

To forestall a fundamental misunderstanding of this book – one easy to fall into given its emphasis on the untoward consequences of moving from a non-instrumental to an instrumental view of law – let me first make clear what I am not arguing. I am not advocating a return to former non-instrumental understandings of law, which appears impossible. Nor am I a legal romanticist inclined toward a utopian view of the reality that accompanied former non-instrumental understandings of law. I do not vouch for the veracity of claims that law embodied principle, reason, and the customs and order of the community. Indeed, I explicitly noted that the common law claim to represent customs from time immemorial was largely a fiction, and I observed that what were identified as natural law principles often merely reflected and bolstered the status quo. Non-instrumental versions of law were guilty of their own sins. Two centuries ago and before, law inured to the benefit of the powerful and was often draconian and intolerant of dissent. To the extent that, under non-instrumental views of law, there was less overt conflict over law and greater apparent consensus within society, this was to some degree the result of an enforced homogeneity in the socio-legal order which suppressed or eliminated contrary groups, granting them little or no recognition within the law.

As suggested by the radical skeptic in the Introduction (and again in Chapter 2), self-described non-instrumental law was instrumental in its own way.

Cause litigation involves lawyers instigating legal actions to obtain decisions that further the particular agenda they support. It represents a “commitment to litigation as a tool for social change.” As one cause lawyer put it, “The law has always been an instrument of change, of course, but in recent decades it has become, through the deliberate, indeed passionate, efforts of a new breed of lawyer-activists, a favored engine of change.” “Since the early 1950s, the courts have been the most accessible and, often, the most effective instrument of government for bringing about the changes in public policy sought by social protest movements.”

The attempt to change society through court rulings is among the most ambitious forms of legal instrumentalism. It utilizes litigation in a manner that was actually prohibited a century ago. The standard paradigm of litigation envisions an unresolved dispute between parties. An injury or harm has occurred and the injured person seeks the assistance of a lawyer to obtain redress against the purported wrongdoer. Litigation is a last resort. The 1908 Canons declared firmly that “It is unprofessional for a lawyer to volunteer advice to bring a lawsuit. … Stirring up strife and litigation is not only unprofessional, but it is also indictable at common law.” Stirring up strife and litigation, then known as “barratry,” is precisely what public interest litigators do in pursuit of a cause.

The close of the nineteenth century and the opening of the twentieth was a period of great intellectual ferment. A burst of academic works spewed forth portraying law and politics as the battleground among competing groups; their common theme was the “seemingly pervasive influence of economic interests” on government. This was the core thesis of Arthur Bentley's The Process of Government (1908) and Charles Beard's controversial An Economic Interpretation of the Constitution (1913). Beard's book was notorious because he tossed mud on the national myth built around the iconic Founding Fathers, arguing that their primary motivation when constructing the Constitution was to advance the economic interests of merchants, large property owners, and creditors, groups in which they were members.

A new intellectual radicalism emerged at the turn of the century, into which these works fit. Historian Christopher Lasch identified the various sources of this emergence: