At the heart of the United States legal culture lie two core notions that exist in deep tension with one another: the idea that law is an instrument, and the rule of law ideal. Although they continue to coexist despite this tension, there are indications that the instrumental view of law is putting a serious strain on the rule of law ideal. The substantive version of the rule of law is the idea that there are legal limits on the government: there are certain things the government cannot do, even when exercising its sovereign lawmaking power. This version of the rule of law ensures the "rightness" of law in accordance with a preexisting higher standard. The formal version of the rule of law is the idea that the government is bound to abide by legal rules that are publicly set forth in advance, are certain and stable, and are applied equally to all in accordance with their terms. This version of the rule of law ensures the predictability of law, which allows citizens to plan their affairs with knowledge of the legal consequences of their actions. Both versions of the rule of law ideally share the basic proposition that the government and its officials, as well as citizens, operate within legal limits and are bound to follow legal rules. The basic difference is that the former version sets limits on the permissible content of law, whereas in the latter version the law can be whatever the law maker desires, as long as it satisfies the formal requirements set out above. it is important to recognize, the modem shift in liberal societies away from a substantive understanding of the rule of law toward a formal understanding of the rule of law was concomitant with the rise of the instrumental view-they were linked as siblings born of the same complex of factors. Starting with a discussion of former non-instrumental views of law, I will support these assertions by outlining the growth and implications of instrumental views of law for the rule of law.
Tamanaha, Brian Z.
"The Tension Between Legal Instrumentalism And The Rule of Law,"
Syracuse Journal of International Law and Commerce: Vol. 33
, Article 11.
Available at: http://surface.syr.edu/jilc/vol33/iss1/11