Academic

Peters on Intrinsic & Instrumental Theories of Procedure

By Lawrence Solum

Christopher J. Peters (Wayne State University Law School) has posted Is Procedure Instrumental? on SSRN. Here is the abstract:

Clearly procedure plays some important role in accounts of legal authority, a concept that depends on the possibility of obedience to substantively disagreeable legal commands. But is the role of procedure intrinsic - commanding obedience without regard to the outcomes it produces - or instrumental? On an epistemic-guidance account of legal authority (like Joseph Raz's service conception), the instrumental nature of procedure is obvious: Legal procedures confer authority by generating better outcomes than legal subjects could achieve on their own. On a broadly Hobbesian dispute-resolving account, however, procedure appears to have entirely intrinsic value, as a focus on outcomes seemingly would recapitulate whatever dispute law is supposed to resolve.

This paper contends that, despite this impresssion, procedure can in fact be instrumental on a dispute-resolving account of legal authority, albeit on a systemic rather than an ad hoc basis - a possibility with potentially important consequences for the legitimacy of legal procedures.

Highly recommended.

Full post as published by Legal Theory Blog on January 14, 2008 (boomark / email).