A Critique of the Overemphasized Instrumental Approach to Law
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Abstract
Positivist law should have a coherently dualistic nature: one oriented towards values and the other towards norms. However, in cases of the social deterioration of values, legislators can turn the law into an artificial mechanism of the production of social order, thus putting emphasis on the instrumental approach to law. The present article questions the unlimited authority of the instrumental approach to law and analyzes the social premises and consequences of its prevalence in consumer society and the limits of its development. The article aims to show the dangers the unlimited authority of the instrumental approach to law may entail for the values that law postulates in the first place.
The increased emphasis on the instrumental approach to law in Western societies has been directly influenced by the stabilizing of the economic growth of the state and the transition to a rising stagnation. In order to ensure the quality of social life, the state resorted to the possibilities granted by instrumental law and consequently overemphasized its role in society.
The three major malaises of contemporary society – individualism, the instrumental priority of reason and the consequences the two bring to political life – have been the main sources of today’s increased emphasis on the instrumental approach to law.
Societies have always controlled the unrestricted endorsement of the instrumental approach to law. Common law and normative pluralism, statutory pluralism and human rights operate as today’s restrictive means against the unconditional use of the instrumental approach to law.
The increased emphasis on the instrumental approach to law in Western societies has been directly influenced by the stabilizing of the economic growth of the state and the transition to a rising stagnation. In order to ensure the quality of social life, the state resorted to the possibilities granted by instrumental law and consequently overemphasized its role in society.
The three major malaises of contemporary society – individualism, the instrumental priority of reason and the consequences the two bring to political life – have been the main sources of today’s increased emphasis on the instrumental approach to law.
Societies have always controlled the unrestricted endorsement of the instrumental approach to law. Common law and normative pluralism, statutory pluralism and human rights operate as today’s restrictive means against the unconditional use of the instrumental approach to law.
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Articles
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
