Law and Legal Instrumentalism

right, a lop of coherent rules and determine deep down a society, is a human process. As such(prenominal), it is crucial to approach its operation within society in a pragmatic and realistic genius sort of than a egg one, which views lawfulity as a nock of mechanical and abstract principles. A lawful realist approach on law takes into account extra-legal factors which help shape how law is apply within a affectionate mount. This approach does non view the discipline of law as a literal set of principles to be mixture wholey detected and utilize, solely recognizes that the interpretation of law by legal actors is manipulated by situational factors.BrianTamanaha in virtue as a Means to an End Threat to the Rule of Law examines how law, originally understood as an instru psychogenic to serve the cordial sound, is now solely a mere instrument to further the goals and agendas of those who fuddle access in its use (Tamanaha, 4). In essence, the nonion of a commonpl ace social good is no lifelong a qualifiable condition of law. In a complex, multi-faceted society, it is optimistic to anticipate that there is a true recognizable social good. Thus, lawyers, legislatures, settle and other(a) legal actors be capable of apply law to further their personalized or collective semipolitical, social and sparing interests.Tamanaha examines the ways in which legal actors, specifically pose litigants and settle, instrumentally exercise law. Thus, the depot instrumentalism, a do work of legal realism, is a pragmatic method which stems out from a semiformal application of law by critically examining courting litigation and legal activism. Although law may be used as a mechanism to happen upon a accepted outcome, it is non used lawlessly and without merit as lawyers ar advocating for a broad social cause and settle use law establish on the merits of the constitution, tending(p) the benefit of time and postulated reason of their purpose do.Brown, a case regarding sequestration within the United States emerged with lawyers stirring up lawsuits by informing Afri mess American citizens of their legal rights (Tamanaha 159). The process of instigating litigation was foregoingly 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 miscellany in in the public eye(predicate) constitution and legislation by fighting for a specific cause within the judicial arena. This ethod was forward-looking in that the courts became a battle field of battle 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 pass water a reformative decree (Tamanaha 1 61). Eventually, cause litigation was an pushd agent 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 come out to benefit society as a whole, the intent of the cause lawyers who pep up 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 tense up towards bring abouts the primary headache, whereas the clients themselves are supplementary, fulfilling the standing requirement before the court (Tamanaha 156).This can be very detrimental to the clients because they may not be witting of the consequences of their legal actions. For instance, Baehr v. Lewin, 1993 was a successful lawsuit brought forth to legalize same-sex matrimony in Hawaii. Although the litigants won, the ultimate consequen ce was detrimental following it was a serial of amendments nation-wide which prohibited same-sex marriage (Tamanaha 167). The battlefield within the court became not a place to determine legal rights, but a remedial particle accelerator in public policy. much(prenominal) political battles center on adversarial ideologies rather than legal rules and merit.However, the turn over of cause litigants cannot be narrowly categorized as one that is purely self-serving. More often than not, cause lawyers instigate lawsuits by informing the oppressed and disadvantaged of their rights. By doing so, they use law to encourage political change to the otherwise uninformed public. These causes often grow to break down social movements as it provides the basis for a sustained series of interactions amidst power holders and persons successfully claiming to speak on behalf of a constituency lacking formal representation (Austin 2). This formal epresentation demands change from the power holder s with a strong mount of social support. Often, these groups lack the resources and skills which lawyers can provide, rancidering their advice to enlighten the marginalized group to instruct and nurture political mobilization (Austin 4). The instrumental use of law by resolve is immensely threatening to the judicial system and to a egalitarian society as a whole. Judges who use law to achieve a certain outcome undermines the rule of law. The legal system requires that judges be objective arbitrators of the law.As independent bodies, it is essential that they remain impartial in their decision making and delegate based on rule, and not personal preferences (Tamanaha 227). This is a crucial aspect of the rule of law, which binds the action of the state to pre-fixed rules, placing judges equal under and before the law, just as all other subjects of society. The rule of law ensures transparency and predictability which prevents the government from ruling coercively. It is an essent ial member to a democratic state.However, when judges decide a cases, they may be inclined to achieve a particular result. In essence, they are victimization laws to achieving another(prenominal) end, namely one that strengthens their own ideological beliefs and interests. Whether it is a certain political philosophy or a particular social policy which they seek, arbitrarily decided cases and manipulated law enforcement defeats the characteristics of the judicial branch of the state. Because there is no particular hierarchy of values, judges are able to promote some while extinguishing others.The general terms of legal rules allows judges to focus on the consequences of their decision. Their decisions will naturally be based on their political affiliations or ideological tendencies. Consequently, it is difficult to believe that judges are very impartial in decision making. The result of judicial activism is that private attitudes become public law (Tamanaha 234). Furthermore, the procedural process of the case takes a rearwards approach the decision is made first, then it is justified by the legal rules which judges find applicable (Tamanaha 236)Nevertheless, there is a certain form of procedure which judges are bound to. Although values are not ranked hierarchically, there are two forms of rights obtained from the constitution specified rights and secondary rights (Bork 17). The latter is of utmost importance as it addresses the values held by the constitution, such as the right to vote or procedures in criminal processing, all which the courts need to protect (Bork 17). The former alludes to the principled rules which the original framers of the text think to convey (Bork 17).Because constitutional law does not have a cover theoretical premise on which adjudicators are required to base their decision making processes on, they are founded on neutral principles. That is, issues are addressed based on general principles postulated on reason to ensure that conflicting values are not lawlessly chosen over one another (Bork 2). Granted, there are adversaries in the legal principles to which judges ascribe. Therefore, it is critical for the judges to recognize that in deciding cases, they are setting legal former, and therefrom should have a firm belief that the values being applied are done so lawfully.These beliefs are in relation to the legal system as a whole, not their personal preferences (Bork 2). Ultimately, Borks concern lies not with the decisions made by judges but what quarters their decisions legitimate. The courts essentially work as advocates for the minority who otherwise would have no say on the issue at hand. Helping the powerless realize their rights is a form of advocacy that judges take. It is not about undermining the rule of law, but give opportunity to access the law (Bork 3).Nevertheless, it is crucial for judges to base their decisions off of neutral principles just as principles and values cannot be applie d lawlessly, they just the same cannot be defined lawlessly (Bork 8). The critical examination of judicial review goes beyond its obvious implications and expositions of undermining the rule of rule. It is unfair to presume that judges are completely unreasoned in their decision making. There is a level of predictability as judges are bound to legal precedent and cannot decide cases in an tyrannical manner.Although the courts are not elected officials who are granted the power to delegitimize legislation, they are in many ways give away equipped in making such decisions. For instance, the courts are distanced from political or social pressure allows them to make sound decisions in a seasonable matter. Elected officials tend to act on expediency and pressure when it comes to making value-based decisions (Bickel 25). Essentially, they are inclined towards one side of the issue in lay to appeal to the interest of the predominate voters, as opposed to abiding to the innate values of law (Bickel 25).Judges on the other hand make decisions furthest from societal pressures, with more leeway in terms of time. This gives the courts the ability to make more calculated decisions, taking into consideration not only the native values of the state but also the unforeseen implications of a decision. (Bickel 26) In dealing with the pith and substance of a case, decisions are argued to be disconsolate second thoughts (Bickel 26). Ultimately, the use of law within a judicial context by judges and lawyers is not an arbitrarily unfair process.Such legal actors are bound to the values of the laws within society. Such values are premised on the rule of law, the foundational concept of a democratic society. Cause litigants are often involved in social issues and advocate for those who require a formal delegate. These cause lawyers may use law in such a way to achieve a certain outcome, but this outcome results in change in public policy to those who are otherwise be unaware of their legal rights. Moreover, although judges may have their own social desires and political preferences, they cannot easily sway towards them.Their professional duty requires them to be consciously rule-bound and rely on the precedent. Further, the basis of their decision is on neutral principles. Such principles are not vague and abstract, but stem from the precedent of previous judges in common law. Instrumentalism is pragmatic in that it recognizes that law is not a math there is not a formula which judges rely on. However, social movements and changes through the judiciary ensures that fresh insight is constantly brought about within society, giving room for social change and progress.