Table Of ContentInstrumentalism and
American Legal Theory
BY THE SAME AUTHOR
Handbook of the Law under the Uniform Commercial Code,
with James J. White
Teaching Materials on Commercial and Consumer Law, with
Richard E. Speidel and James J. White
Essays in Legal Philosophy, editor
More Essays in Legal Philosophy, editor
Law, Its Nature, Functions and Limits, with Charles G. Howard
Justice and Order through Law, with Gail Hubbard and A.
Bruce Campbell
The American Legal System, with John Bozzone and A. Bruce
Campbell
Collective Bargaining and Public Benefit Conferral—A Juris¬
prudential Critique
Het Pragmatisch Instrumentalisme
Pragmatischer Instrumentalismus und amerikanische Rechts-
theorie
Instrumentalism and
American Legal Theory
Robert Samuel Summers
Cornell University Press
ithaca and London
Copyright © 1982 by Cornell University Press
All rights reserved. Except for brief quotations in a review, this book, or parts thereof,
must not be reproduced in any form without permission in writing from the publisher.
For information address Cornell University Press, 124 Roberts Place, Ithaca. New
York 14850.
First published 1982 by Cornell University Press.
Published in the United Kingdom by Cornell University Press Ltd.,
Ely House, 37 Dover Street, London WiX 4HQ.
International Standard Book Number 0-8014-151 i-X
Library of Congress Catalog Card Number 82-71596
Printed in the United States of America
Librarians: Library of Congress cataloging information appears on the last page of
the book.
The paper in this book is acid-free, and meets the guidelines for permanence and
durability of the Committee on Production Guidelines for Book Longevity of the Council
on Library Resources.
For Dorothy
Digitized by the Internet Archive
in 2019 with funding from
Kahle/Austin Foundation
https://archive.org/details/instrumentalismaOOOOsumm
Contents
Preface 11
General Introduction 19
The Name “Pragmatic Instrumentalism” 20
The American Pragmatic Instrumentalists 22
Origins 26
Importance of Pragmatic Instrumentalist Theories 34
“Legal Realism” Inappropriate as a Name 36
Organization of the Book 37
PART one: the elements of law
1. Theory of Value 41
Maximal Satisfaction of Wants and Interests 43
A Concern with Consequences 53
An Empirical Approach 54
An Emphasis on Particulars (“Context”) 56
2. Means and Goals 60
Law as a Social Instrument 60
Goals and Goal-Structures 61
Behavioral Models of Goals and Means 66
Relations between Goals and Means 69
Forms of Law Described (or Stated) Merely as Means 70
Law as a Source and Definer of Goals 74
Interaction of Goals and Means 78
PART two: the creation and administration
OF VALID LAW
3. Change, Science, and the Creation of Law 83
The Creation of Law—Methodology 86
Some Excesses and Myopias 92
Other Issues in the Theory of Lawmaking 99
7
8 Contents
4. Valid Law I—Official Action
The Validity of Law as Determined by Reference to Official
Action 102
Prescribing Standards of Validity—A Task for Legal
Theorists? 111
“The Law in Action” versus “the Law in Books” 112
5. Valid Law II—Predictions
The Predictive Theory 116
Motivations and Virtues of Predictivism as a Theory of Legal
Validity 118
Deficiencies of Robust Predictivism as a Theory of Legal
Validity 121
Deficiencies of Robust Predictivism as an Account of Good
Lawyering 127
Other Faults of Predictivism 128
Presuppositions of Robust Predictivism 133
6. Legal Method
The Attack on Formalism
A. Comprehensiveness of Preexisting Law 138
B. Extent and Appropriateness of Judicial Lawmaking 139
C. Considerations Relevant in Lawmaking 142
D. Reality of Valid Existing Law 143
E. Appropriate Generality of Law 144
F. In Legal Analysis: Relative Primacy of Facts, Things, and
Effects over Unitary Concepts and Terminology 146
G. Issues of Interpretation and Application: Case Law 147
H. Issues of Interpretation and Application: Written Law 153
1. “Deductivism” 154
Tabular Summary of the Attack on Formalism 157
Other Legal Methods Attacked by Instrumentalists 159
Criticism of Instrumentalist Method—The Common Law's Alleged
Indeterminacy 161
Criticism of Instrumentalist Method—The Insufficient Role for Sub¬
stantive Reasons 166
Criticism of Instrumentalist Method—The Animus toward
Generality 174
7. The Separation of Law and Morals
On Interpreting the “Separationists” 176
The Substance of Law 179
Scope of Judicial Lawmaking 181
Standards for Identifying Valid Law 182
Interpretation and Other Issues 189
PART three: the implementation and
FUNCTIONING OF LAW
8. Law’s Implementive “Machinery”
A Preliminary Inventory of Law’s Resources 193
Contents 9
Law as Technology 201
The Unwisdom of Technological Metaphors 206
9. The Nature and Role of Personnel 209
The Personnel Element in Law 209
Personnel versus Precept 210
Officials versus Nonofficials 215
“Decision Theory” 222
10. Coercion, Force, and Direct Official Action 224
Coercion and Force 224
Directness of Official Action 230
PART FOUR! THE EFFICACY OF LAW
11. Criterion for Judging the Success of a Use of Law 239
The Complex Evaluative Nature of Efficacy Judgments 240
Further Difficulties in Applying an Efficacy Criterion 244
The Deficiencies of Efficacy as a Criterion of Success 250
Actual Efficacy as a Criterion of Success and Predicted Efficacy as
a Justificatory Standard—Differences and Relationships 252
12. The Limited Efficacy of Law 255
Instrumentalism and Law’s Limited Efficacy 255
A More Systematic Approach 258
General Conclusion 268
Pragmatic Instrumentalist Theories about Law and Its Use 268
Distinctiveness of Pragmatic Instrumentalist Theories 272
American Pragmatic Instrumentalist Thought—A Distinct General
Theory? 272
American Pragmatic Instrumentalist Thought—Its Influence in
America 274
The Balance Sheet and the Agenda 278
Selected Bibliography 283
Index 291
Illustrations
Roscoe Pound
45
Oliver Wendell Holmes, Jr.
117
Karl N. Llewellyn
211
John Dewey
241
10
