Academic

Pardy on Markets, Ecosystems, and Legal Instrumentalism

By Lawrence Solum

Bruce Pardy (Queen's University - Faculty of Law) has posted The Hand is Invisible, Nature Knows Best, and Justice is Blind: Markets, Ecosystems, Legal Instrumentalism, and the Natural Law of Systems (Tulsa Law Review, Vol. 44, pps. 67-92, 2009) on SSRN. Here is the abstract:

In modern welfare states, instrumentalism abounds. Law is viewed as a means to an end, or a tool for the social good. 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.

In this article, I argue that legal instrumentalism is inconsistent with the nature of dynamic systems, and in particular ecosystems and markets. The notion of dictating particular ecological or economic ends conflicts with the natural behavior of these systems and their immutable rules. Ecosystems and markets may be interfered with, but the nature of their processes cannot be altered. The idea of dictating specific ecological or economic results is inconsistent with the way they behave. The appropriate role for law is to set generally applicable boundaries within which markets operate, and to establish generally applicable limits on the degree to which human actions encroach upon ecosystems. Its proper mandate is to protect these systems from manipulation rather than to seek to manipulate them.

Law is a system too. The natural law of systems is based not upon moral preferences but upon abstract features that resemble those of ecosystems and markets: generally applicable rules and principles, intrinsic neutrality, internal coherence and integrity, and autonomous individuals. The mandate of decision-makers is not to 'do right' but instead to 'let the system speak.' Once generally applicable legal parameters are established, the 'right' result is what the system says it is. The right price is the price dictated by competitive supply and demand. The right environmental conditions are those produced by protected, unmanaged ecosystems. The right decision is that prescribed by the generally applicable principles of a precedent-based system of law.

Full post as published by Legal Theory Blog on June 22, 2009 (boomark / email).