The following is an excerpt from Professor Bruce Pardy’s book, Ecolawgic: The Logic of Ecosystems and the Rule of Law. The footnotes from the original version have been omitted. The full text can be accessed here.
Bruce Pardy is Professor of Law at Queen’s University. He has written extensively on a wide range of legal topics, taught at law schools in Canada, the United States and New Zealand, and practiced litigation at Borden Ladner Gervais LLP in Toronto. Recently he retired from the Ontario Environmental Review Tribunal where he sat for almost a decade as an adjudicator and mediator.
A. Legal Instrumentalism: Law as a Means to an End
The motto “Soit Droit Fait” appears on the crest of the law school where I teach. Translated, the phrase means “Let Right Be Done”. It reflects the instrumentalist’s mantra: law is a means to an end, or a tool for the social good.
In modern welfare states, legal instrumentalism abounds. The proposition that law is a tool to achieve desirable ends has become so widely ingrained in law and public policy that it is regarded as self-evident. Courts frequently rely on policy grounds to justify idiosyncratic results in particular cases. Governments develop policies and programs designed to address a multitude of specific social issues. Legislatures grant administrative agencies broad mandates with minimal oversight, and officials act with their own initiative to craft solutions to what they perceive as pressing community needs. Everywhere state actors take it upon themselves to pursue the ends they deem appropriate.
Nowhere is the triumph of instrumentalism more emphatic than in environmental law, where rule-based governance has given way to result-based discretionary decision-making. Ecosystem management, environmental assessment, case-by-case environmental approvals, and context-driven regulatory development and enforcement dominate the modern practice of environmental law. Occasional attempts are made to identify or articulate abstract principles, but these principles tend to be malleable and vacuous. They provide political and legal decision-makers with more room, not less, to craft idiosyncratic results in any particular situation. The architecture of environmental law enables officials to control outcomes one situation at a time: Should this industrial facility be permitted to pollute? Should that mining site be rehabilitated? How much of this hazardous substance is to be permitted in plastic bottles? How many wolves should live in the park? Environmental law has become a hands-on phenomenon where agency discretion governs and ad-hoc decisions are commonplace.
An instrumentalist approach to market governance was once controversial, but now in the economic realm such measures have become standard practice. Examples abound: subsidies for the building of manufacturing facilities and sports stadiums; government bailouts for troubled banks and car manufacturers; welfare programs to counter poverty; public spending to create jobs; government grant programs to support specific towns or regions; marketing boards for agricultural products; subsidies for development of alternative energy technologies; subsidized housing; government-run pension programs; entitlements to child benefits; rebates for energy-saving home renovations; and tax incentives for this, that, and the next thing. These strategies and many more are designed to provide governments with the ability to manage commercial activity and the economic behaviour of its citizens.
Instrumentalist law can be legislative or adjudicative, or a combination of both. In the legislative realm, instrumentalist statutes are of two types. They consist of specific rules that apply to particular facts or parties, or vague rules that grant officials and adjudicators wide discretion to fashion unique solutions to particular social problems. These two types of legislation seem quite different. One is specific and non-discretionary while the other is vague and very discretionary. However, they are both instrumentalist in nature, the first because the rule itself is designed to achieve a specific purpose and the second because the statute creates a regime within which particular officials have the discretion to determine specific outcomes in specific situations. The process of applying the latter has the effect of producing the former. Applying a vague, discretionary rule produces a specific rule for a specific factual circumstance, producing a series of result-oriented, isolated decisions that lack common principles.
Adjudicative instrumentalism relies on result-based reasoning, the practice of resolving particular cases on the basis of the desirability of the answer. Written reasons, as in a court decision, typically make generous use of policy grounds and case-specific observations to justify the decision. Instrumentalism promotes adjudication that reflects a judge’s personal perception of right and wrong, and thus submits citizens to coercive control that is unfettered by democratic accountability. Result-based decisions are highly discretionary and difficult to challenge or appeal on the grounds of legal error since the basis of the decision was not primarily the application of substantive law in the first place.
In an ideal instrumentalist universe, there is no independently existing legal content that binds decision-makers. Such content would constrain them from “doing right” in each new situation. While instrumentalists do not go so far as to decry the existence of statutes, it is not difficult to find examples of courts that view statutory provisions as narrow fetters on their general discretion, unfortunate inconveniences to be disregarded or dismissed when they stand in the way of a proper outcome.
Utilitarianism, the dominant purpose of instrumentalism, is an ethical or jurisprudential theory that identifies social utility as the objective of law and social action. It often manifests as a rough calculus of benefit and burden assessed at a community level. Utilitarianism can be adapted to serve a variety of interests, as benefit and burden are defined at will. Groups with vastly different agendas can claim to be utilitarian, defining and redefining the proper result in accordance with their interests and preferences, sacrificing the rights of the individual in favour of a vague notion of the collective good. Policy considerations tend to be offered as rationales to legitimize arbitrary preferences, masking the subjectivity and moral relativism inherent in the utilitarian inquiry.
Whether the “right” result reflects economic efficiency, egalitarian distribution, socially conservative values, preservation of life, or one of a multitude of other political preferences depends upon the prevailing belief about what is good and desirable. Consider, as an illustration, the school of thought known as law and economics, a prominent version of utilitarian philosophy. Its working premise is that society should be ordered in a manner that produces the maximum aggregate economic welfare.
One of the foundational analyses of law and economics is Ronald Coase’s “The Problem of Social Cost”, written in 1960. In it, Coase analyzed the effects of different legal arrangements upon overall economic welfare. In situations where there are zero transaction costs and no serious impediment to bargaining between parties, Coase said that conflicts are resolved in an economically efficient way as long as one of the parties to the conflict has a clear legal right to restrict the other party. Coase used the example of a rancher located adjacent to a farmer. The rancher’s animals wander from the rancher’s property to the farmer’s, damaging his crops. While it is possible to leap to the conclusion that the rancher is causing harm to the farmer, to do so presupposes that the farmer has a legal right to exclude the rancher. Coase said that in order to know who imposes costs on whom, one must know who holds the legal right. If the farmer has the right to exclude, then the animals do impose costs on the farmer. But if the rancher has the right to let his animals roam, then any restriction inflicted by the farmer is a cost imposed upon the rancher. According to Coase, as long as one of the parties has a clearly defined right to restrict the other, the parties will bargain between themselves to work out an efficient solution.
In scenarios where there are high transaction costs that create practical obstacles to negotiation, Coase argued that an economically efficient solution depends upon an assessment of the aggregate benefits and costs experienced by all parties. One of his examples is a railway that runs through numerous farms. Sparks from the train periodically cause crops to catch on fire. Because there are many parties affected by the train, the railway would have difficulty negotiating with all of them. Some might agree to a bargained resolution, but others would seek to “free-ride” – to be the beneficiaries of a solution without having to contribute money to achieve it. Should the farmers be able to hold the railway liable for the loss of the crops? It depends, Coase suggested, on the value of running the train and the value of the crops that are lost. If the farmers can be the lowest-cost avoiders by refraining from growing crops next to the tracks, then the economically efficient solution may be to make the railway immune from liability for damage from the sparks. Coase said that each case must be assessed on its own merits and that no generic prescriptions are possible.
Coase’s economic analysis is correct: when rights are allocated in the manner he describes, it produces an economically efficient result that maximizes aggregate welfare. However, Coase did not address why aggregate economic welfare is the right value to pursue. Aggregate welfare is a measure of economic efficiency at a social level, and ignores the fortunes of individuals whose interests may be sacrificed in order to achieve the collective good. Its pursuit can rationalize setting aside rights that stand in the way. If slavery maximizes overall productivity, is the right to self-ownership to be suspended?
Coase assumed that the correlation between aggregate economic welfare and the social good was self-evident. He identified arrangements that would maximize productivity, but provided no reasons why that notion of the proper result should prevail. His analysis is consistent with the instrumentalist premise that pursuit of the public good is the most important consideration. The content and allocation of legal rights depend upon that which the public good requires, as determined case-by-case. Through instrumentalist eyes, law is merely a tool. It has no inherent content of its own. It is bereft of internal sensibility, an empty vessel that can be filled by whoever is politically or legally powerful enough to fill it. The right result depends on who has the reins. Stripped to its core, instrumentalism is not much more than an unfettered power to coerce. As Brian Tamanaha describes:
Fundamental disputes exist over what social justice requires, over the proper trade- offs between liberty and equality or between formal and substantive equality, over the enforcement of moral and religious norms in the public and private spheres, over the rights of women, minorities and gays and lesbians, over the appropriate distribution of resources and opportunities, over conditions of employment, over the balance between economic development and harm to the environment, and so on. The old faith that the sciences will supply answers to these questions now smacks of naiveté – the natural and social sciences are themselves caught up in the battles among groups, with contrary studies enlisted to serve all sides. … These attitudes fuel the militant “groupism” that is a standout feature of contemporary political-legal discourse. … All of these various groups confront one another in various legal arenas – in cause litigation, in legislative and administrative lobbying, and in battles over judicial appointments – and routinely claim to be acting in the name of the public good.
B. The Rule of Law
The instrumentalist’s mandate to achieve the right result conflicts with the premise of the rule of law that government decision-makers are not free to do as they think best, “to innovate at pleasure … roaming at will in pursuit of [their] own ideal of beauty or of goodness,” but are constrained by the content of the law.
Many formulations can be found for the rule of law, but the essence of the concept is reflected in the term itself: people are to be ruled by laws rather than by the subjective inclinations of those in positions of authority. Generally applicable, abstract rules and limited state discretion ensure that government is subject to the same law as individual citizens.
Stripped of all technicalities, [the rule of law] means that government in all its activities is bound by rules fixed and announced before-hand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.”
The rule of law calls for legal process that is detached and impersonal, in which general rules are created without a view to the particular case, and particular cases are resolved by applying only general rules. In this way, legal disputes are insulated from individualized notions of justice and from the politicization of the law. Achieving rule of law norms is not as easy as it sounds.
(1) How decisions are made: Positivism, formalism and the myth of mechanical decision-making
In a rule of law universe, law has predetermined content not subject to the whims of the decision-maker. The methodological premise of the rule of law is that decision-makers are the instruments through which law is applied but are not the source of the law.
Positivism offers a simple definition of law: statutes enacted by legislatures, regulations created pursuant to statutory authority, and common law precedents. For the positivists, laws are simply commands, and there is no necessary connection between law and morals or between law and public good. These laws bind courts and administrative officials. No other content with the force of law exists.
The most literal variation of a rule of law approach is formalism, which has come to stand for a rigid, formulaic conception of law in which legal rules are mechanically applied to facts in order to produce an objective answer. Formalism is jurisprudence’s version of the computer. If the inputs are correct – accurate facts and the relevant law – then the outputs should follow as a matter of course without the interjection of the subjective preferences of the decision-maker.
If adjudication actually worked this way, then a literal rule of law free from the personal inclinations of state officers would be possible. However, formalist theory is susceptible to the criticism that its ideals do not reflect the actual dynamics of legal problem solving. The difficulty is not simply that legal officers are seduced by the temptation to reflect their personal preferences, but that the process of applying general rules to specific facts relies on language, which contains inherent ambiguities within which skilled legal practitioners can bob and weave. Answers in hard cases are not formulaic or automatic but call for interpretation, reasoning, and argument. Similarly, positivism’s main conceptual difficulty derives from the inevitable gaps that arise between rules. If there is no other source of law to fill gaps, then once a gap arises, the decision must be discretionary. Thus, it is possible within a positivist approach to end up with instrumentalist decisions.
(2) What law consists of: Natural law and the fallacy of moral reasoning
Natural law takes a different tack. Although like formalism and positivism, it belongs under the rule of law umbrella, the premise of natural law is that there are objective moral truths that apply to all human beings and upon which laws should be based. Natural law contains inherent, substantive limits on what legislatures and judges can do, a “notion that there are legal limits on law itself, limits derived from divine law, natural principle, reason, or customs descended from time immemorial.” Natural law is a “higher” law, based upon universal and immutable truths, whose purpose is to reflect what is good for human beings. The earliest formulations of natural law theory linked reason with some notion of a deity, and thus tended to be influenced by theology. Contemporary revival of natural law ideas reflect a wide spectrum of content, from Fuller’s eight minimum procedural requirements to Finnis’ seven human goods or basic forms of human flourishing.
The purpose of moral reasoning is to discern the good and right way to live. It has much to offer as an exploration of personal perspective and belief, but it has questionable validity as a justification for coercive rules. The rationale for basing law on morality is that it is a non-arbitrary, uniform standard that is true for all human beings. However, the many volumes of moral reasoning produced by philosophers and legal theorists throughout the years illustrate the opposite truth: moral standards are personal, arbitrary, subjective, and cannot be proven to be otherwise. One can see the subjectivity of those preferences simply by observing the wide variation between natural law’s abstract characteristics as proposed by Fuller, the substantive content proposed by Finnis, and the libertarian conclusions of Nozick. When the layers of such works are scraped away to find the rock on which natural law is to be based, one finds mere assertions that reflect the premises that their authors take to be self-evident, as though these premises were propositions with which any right-thinking person would agree.
But “right-thinking” people disagree. Absolute moral truths may or may not exist. If they do, no one has yet proven what they are. Therefore, even if there are ultimate Rights and Wrongs that exist independently of social mores, cultural conventions, and religious codes, laws should not pretend to be based upon them. To do so would be to impose subjective preferences on people who do not agree. Since natural law claims to be based upon moral absolutes rather than public opinion, it is not sufficient to establish their validity by pointing to majority opinion or public consensus. The agreement of a majority of people about moral absolutes simply means that they agree, not that the moral absolutes that they agree about are, in fact, absolute. Twenty years hence public opinion may have shifted, but by definition moral absolutes never do. If the real criterion is majority opinion, then the principle of basing laws upon universal morality is a fiction.
The main difficulty with the concept of natural law is that it calls upon the state to enforce particular views about morality and goodness. The idea that there are inherent moral limitations on the power of legislatures or judges is burdened by the subjectivity of moral preferences and the diversity of views within a pluralistic society, which makes the proposition of immutable natural law difficult to maintain. Therefore, to base legal rules on a particular notion of natural law would achieve the opposite of what it claims: rather than reflecting a universal, immutable human code of good, it would necessarily reflect a subjective opinion of what is right. Therefore, the law should not pretend to be based upon morality. Indeed, natural law propositions that are based upon moral preferences are problematic in the same way as instrumentalism. They presume the rightness of a view that is, in the end, just a view.
C. Conclusion: The Law Question
If law is not to be based upon morality, or upon a utilitarian cost-benefit analysis, or upon a particular view of the public interest, then upon what should it be based? Natural law and instrumentalism start in opposite corners, the former proposing that law has inherent content that limits the actions of state officials and the latter denying that it does or that it should. However, their abstract goals are strangely similar: both seek to give legal force to subjective preferences. These preferences are found either within the particular version of natural law being professed as natural or within the instrumentalist priorities of officials crafting solutions.
In the absence of natural law, law is a vacuum. It can be filled by whatever interest manages to gain access to state power to achieve particular ends. The alternative is to prescribe predetermined legal content that reflects an objective truth about what is good, desirable, right, and proper – but that proposition is a fiction. It would entrench a particular view about what is good that, in a pluralist society, cannot reflect the predilections of all members of the community to which it is applied.
What is the alternative? What approach can protect against arbitrary exercise of state power used to pursue particular ends, be they evil or benevolent, and avoid the imposition of one group’s priorities over others? Are there standards that are natural, unassailable, objectively true, and independent of human preference? Is there a non-arbitrary, uniform principle on which the law can be based?