Law's Failures: Means and Ends

One view of law in the academy treats law as the embodiment of norms, the outcome of political compromise, and the repository of social meanings. This view suggests that the task of legal scholarship should be first and foremost to provide a celebratory or critical account of the content of legal norms, the meaning of legal texts, or the place of law in culture. This view also suggests, in a parallel way, that the most significant dimensions of the judicial task concern inquiry into law's substantive meanings. Another branch of the academy views law in essentially instrumental terms. This view, popular across the political spectrum, views law in primarily pragmatic terms, as a tool to be judged by its successes or failures in achieving stated ends. What both of these traditions overlook are the consequences or effects of the social practices of producing legal knowledge. To those interested in meaning, the technical dimensions of law are a mundane and inherently uninteresting dimension of the law, the realm of practice rather than theory. To the instrumentalist, in contrast, the technical details of doctrine are inherently interesting, but only as a means to an end. What makes the Conflict of Laws interesting and challenging at this moment is that it fails as a subject from either of these two points of view. The explanation I am offering here for the failure of Conflicts admittedly goes against mainstream legal understandings of how doctrines evolve or fail. These understandings emphasize actors or conditions outside the law. What I have tried to suggest is that an explanation of the failures of a field such as Conflicts cannot limit itself to an account of the political commitments of judges, politicians, bureaucrats or academics, nor to the changed character of the economic or cultural condition. Rather, some of the credit for the device's adaptations, expansions, successes or failures must go to the form of the device itself.