Is Our Legal Order Just Another Bureaucracy

Abstract

A classic formulation portrays bureaucracy as the characteristic modern institution, incomparably effective as the home of instrumental rationality and domination through knowledge. We often understand our legal order as controlling bureaucracy by insisting that bureaucrats “play by the rules.” Courts, in this view, uphold the rule of law in the face of a threatening purely instrumental reason. However, an understanding of the courts as the enforcers of legal rules fails to offer an account of how the legal order itself is not just another bureaucracy. This essay argues that we must look elsewhere for an understanding of the legal order as something more than bureaucratic.