The many uses of law. Interactional law as a bridge between instrumentalism and law's values

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Abstract

Legal instrumentalism has a bad name: it is criticized for reducing law to a policy instrument for external political or economic goals. In this paper I aim to rehabilitate instrumentalism, at least to some extent, by reinterpreting it from the perspective of pragmatist interactionism. By seeing law as emerging from the interactional expectancies of people towards one another, law is conceptually based on horizontal relationships (building on the theory of Lon Fuller). In the paper I will argue that this horizontal orientation can provide a specific version of an instrumental view of law because it pluralizes law’s instrumentality. Law is no longer seen as a policy instrument in the hands of authorities, but as a tool for everyone who makes use of it (making use of John Dewey’s pragmatism). Such a bottom-up account of law as an instrument requires arguing how the purposive activities of people in legal practices shape law as an interactional phenomenon. It also requires an argument on how the horizontal and vertical dimensions of law are connected. This means exploring to what extent law as set by official authority figures in, limits or enables, the different uses ordinary people make of law. Legal mobilization by activist individuals and groups is used to see how the vertical relationship involves bottom-up instrumentalization of law and how this relates to law's values. Keywords: legal pluralism, legal theory, legal values, bottom-up perspective, pragmatism and law
Original languageEnglish
Title of host publicationIn Pursuit of Pluralist Jurisprudence
EditorsN Roughan, A Halpin
Place of PublicationCambridge
PublisherCambridge University Press
Pages116-135
Number of pages20
ISBN (Print)9781316875056
DOIs
Publication statusPublished - 2017

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