Reconciling Competing Approaches to Legal Theory
It is natural to think of the purpose of the law in terms of the interests that law serves. Criminal law deters harmful conduct, tort law compensates injured persons, contract law facilitates commercial activity, the law concerning freedom of expression contributes to the search for the truth, and so forth. But another way of thinking about law - a view associated very strongly with this faculty - takes the law to have no purpose external to itself. Criminal law punishes a certain kind of wrongdoing, tort law and contract compensate wronged persons, the law concerning freedom of expression is structured by the rights of the speaker and the audience, and so forth. Call the first view an instrumental account of the law; call the second view an internal account of the law. On the instrumental account, the task of legal theory is to explore the ways in which legal doctrine promotes the law's (external) purposes, and to recommend changes to those rules if they do not further those purposes; on the internal account, the task of legal theory is to give a coherent account of the (internal) structure of legal doctrine in terms of the rights and duties of the persons to whom it applies, apart from its effects on any external goals.
Both the instrumental and the internal accounts are appealing. The instrumental account speaks strongly to our sense that the law is not a "brooding omnipresence in the sky" but a human creation that serves human purposes; yet the internal account has been extraordinarily successful in explaining and justifying many features of legal doctrine that are incomprehensible to the instrumental account. However, on closer analysis, each account also has its limits. Instrumental accounts run up against the question of why the value that the law is supposed to be pursuing is actually valuable, a question it cannot answer. But internal accounts cannot avoid reference to purposes external to the law in choosing among the various legal doctrines that are consistent with the demands of the internal approach itself. So it is natural to ask whether there is some way to reconcile the two accounts in a way that would capture the appealing features of each. My theoretical work over the last several years has been directed at the possibility of such a reconciliation, both in the abstract and with specific reference to some central problems of criminal law. I argue that the principled arguments characteristic of the internal approach generate a field of possible legal doctrines, within which the empirical arguments characteristic of the instrumental approach can operate. In this way, the structural features of the law that the internal approach illuminates are preserved without sacrificing the possibility that the law can be made to serve external purposes; or, to put the same point the other way around, the fact that the law can indeed be made to serve external purposes does not require the sacrifice of its internal structure.
This article was first published in the Spring 2005 issue of Nexus.
