By Ernest J. Weinrib
University Professor and Cecil A. Wright Professor of Law

This article was first published in the Spring 2005 issue of Nexus.

Prof. Ernest J. WeinribThe idea that one understands law through its purposes is commonly regarded as a truism. For instance, tort law is supposed to reflect the goals of compensation and deterrence. Because this idea conceives of law as an instrument for the realization of certain purposes, we can term it "instrumentalist." The questions I propose briefly to consider are these: What is involved in the instrumentalist approach? Can this approach make sense of private law? And if not, what is the alternative?

Under the instrumentalist approach, the justificatory worth of the goals is independent of the law that they justify. To continue with our tort example, deterring accidents and compensating accident victims are socially desirable quite apart from tort law. If tort law achieves these goals, so much the better, but the validity of the goals does not derive from tort law. Tort law is merely a tool for forwarding independently desirable purposes given to it from the outside.

A consequence of the focus on independently justifiable goals is that private law is only indirectly implicated in the instrumentalist inquiry. The instrumentalist starts by looking past private law to a catalogue of favoured social goals. Private law matters only to the extent that it forwards or frustrates these goals. What the instrumentalist proposes is not so much a theory of private law as a theory of social goals into which private law may or may not fit.

Moreover, the instrumentalist is concerned with whether the results of cases promote the postulated goals. Private law, however, is more than the sum of its results. It also features a set of concepts, a distinctive institutional setting, and a characteristic mode of reasoning. These aspects are components of the internal structure of private law and do not readily map on to the instrumentalist's extrinsic goals. By ignoring these aspects, instrumentalism misses what is most characteristic of private law as a legal phenomenon.

Furthermore, the favoured goals are independent not only of private law but also of one another. Thus, compensation and deterrence, the two standard goals ascribed to tort law, have no intrinsic connection: nothing about compensation as such justifies its limitation to those who are the victims of deterrable harms, just as nothing about deterrence as such justifies its limitation to acts that produce compensable injury. When these two goals are combined within a liability regime, each of them truncates the other. Can one seriously believe that compensation and deterrence are optimal when the incidence of the plaintiff's compensation is determined by the need to deter potential defendants and when the amount of deterrence imposed on the defendant is set by the fortuity of the plaintiff 's injury? That would be a coincidence of Panglossian proportion. Understood from the standpoint of mutually independent goals, private law turns out to be a potpourri of unharmonised and competing purposes.

A preferable view is this: Private law can be understood only from within and not as the juridical manifestation of extrinsic purposes. Instead of inquiring into its goals, one should attend to its internal structure, to its way of connecting plaintiff and defendant, to its normative presuppositions, to its assumptions about fairness and coherence, to its characteristic concepts, to its institutional requirements, and to its implicit notion of human freedom. These issues deal with what is internal to private law as a distinctive normative practice. If we must express this intelligibility in terms of purpose, the only thing to be said is that the purpose of private law is to be private law.

Instrumentalists dismiss as a hopelessly unilluminating tautology the suggestion that private law has the purpose of being itself. In their eyes private law is - and can be nothing but - the expression of external goals.

Nonetheless, this dismissal of the internal intelligibility of private law is surprising. It cannot be (one hopes) that the very idea of a phenomenon intelligible only in terms of itself is unfamiliar. Some of the most significant phenomena of human life - love or our most meaningful friendships, for instance - are intelligible in this way. We immediately recognize the absurdity of the instrumentalist's claim that the point of love is to maximise the efficiency of experiencing certain satisfactions while at the same time avoiding the transactions costs of repeated negotiation. The very terms of the analysis belie the nature of what is being analyzed. Explaining love in terms of extrinsic ends is necessarily a mistake, because love does not shine in our lives with the borrowed light of an extrinsic end. Love is its own end. In this respect (and only in this respect), private law is just like love.