The Limits and Promise of Instrumental Legal Analysis

Should law be understood as serving external social goals, or as an irreducible bearer of moral weight? This question has been a topic of fierce contemporary debate. One tradition argues that legal rules should be evaluated by their consequential effects in service to some external, typically quantifiable value. The success of this approach has produced a robust backlash, with some scholars asserting that law is a normatively unique bulwark of relationships between persons. In this view, the significance of legal rules cannot be fully metricized, nor can law be appropriately pressed into the service of some external goal.

Despite this backlash, unabashed and uncompromising treatment of law as instrument is still going strong. Radical Markets: Uprooting Capitalism and Democracy for a Just Society by Eric A. Posner and Glen Weyl, and Pricing Lives: Guideposts for a Safer Society by W. Kip Viscusi provide two muscular instances of instrumental legal analysis. Both texts are forged in robust methodological commitments – auction theory for Posner and Weyl, the value of a statistical life (VSL) for Viscusi – and both suggest bold reforms that would benefit the authors’ favoured external good. An analysis of these influential texts, however, reveals the degree to which they neglect the status of law as an intrinsically moral element of the social and political order.

This review article demonstrates that the reforms proposed by Radical Markets and Pricing Lives would have problematic impacts upon the normative integrity and practical consequences of the law, particularly by undermining the stability of legal rights based on reason‐giving norms. Both texts’ proposals potentially undervalue and undermine personal autonomy and diminish the ability of rights to protect this freedom from intrusion by the state and other private actors. Moreover, the relational critique shows that the two texts are analytically incomplete, insofar as both presume normative features of law that they do not address or investigate. This exposes the deepest challenge to instrumental reasoning and quantification as a basis for legal reform generally: because it rests upon intermediary abstractions, it does not intrinsically contain normative justification. The review article concludes by observing how interrogating the philosophical presumptions of the two texts could indicate what is necessary to provide this normative foundation.

Full text available at

https://doi.org/10.1111/jols.12238