Instrumentalism, legal accountability, and prima facie benefits
Prior to outlining the benefits themselves, there is a need for a rather detailed methodological detour of sorts.
1. Instrumentalism, adjudication, and institutional design
I agree with the view that the function of law generally is to serve as a means to an end.[436] By ‘law’, I mean the set of formal sources and legal standards officially recognized as constituting law,[437] and the set of institutional procedures (the legal process) used authoritatively by adjudicative institutions to identify and uphold the law.
Law is used as an instrument, by its authors (and sometimes interpreters) to bring about some state of affairs. Such ends can be intrinsically valuable (eg. equality, liberty, dignity, fairness etc.), or can be ends that are themselves means for obtaining other things of intrinsic value (eg. prosperity, stability, coordination, transparency, etc.). And any instrumentalist account of law’s value must acknowledge that the ends secured by law may well be negative, whether by design or accident (eg. domination, exploitation, conservation of harmful customs, etc.). Law is typically used to secure a broad range of ends.[438]We can at this point state a weak and a strong thesis about the instrumental value of law. The strong thesis is that the desirability of law is measured exclusively by reference to whether it produces desirable ends. On this view, there is nothing intrinsically valuable about law or legal institutions. This is a plausible view in my mind, but it is not my aim to defend it here. The weak thesis is that the worth of law and legal institutions is predominantly to be evaluated by reference to the ends they produce.[439] Such an account does not deny the possibility of a residual intrinsic dignity to the law or legal processes themselves, but it considers it to be marginal in any inquiry about the true value of law.
This essay takes this weaker view. In the main, it is concerned to evaluate the value of some aspect of legal regulation by examining what it does. An important consequence of this view is that the value of legal accountability is ultimately contextual.I consider what I have said above to be broadly consistent with the views of H L A Hart and John Finnis about the nature of (human made) law and legal institutions.[440] Ronald Dworkin's view of what constitutes the law on any given question is not straightforwardly compatible with this position, though his view of the role and desirability of different modes of adjudication plainly is instrumentalist in this manner.[441] Notably, to make such claims about law and legal institutions does not imply any strong view about the role of legal instrumentalism in adjudication.[442] That is, one can be an instrumentalist about evaluating the desirability of legal processes or doctrines, without suggesting that judges should adopt an instrumentalist attitude in their disposal of particular cases.[443] Indeed, as with rule and act conse- quentialism, the very best case against this type of potential opportunism may be an instrumentalist argument that such an approach undermines the proper ends of a well-functioning legal system. In my view, instrumentalist arguments are most appropriate for the level of institutional design.
2. The meaning of ‘legal accountability’
In this essay, I aim to address the value of legal accountability, as defined in this sub-section, and not of law as a whole. Marc Bovens offers a ‘narrow' sense of the concept of accountability, in the effort to avoid any evaluative dimension and obfuscation sometimes found in a discourse that treats accountability as synonymous with transparency, responsiveness, controllability and so on.[444] He argues that ‘[a] ccountability is a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgment, and the actor may face consequences.'[445] I follow Bovens in all these respects.
Bovens claims legal accountability is the most ‘unambiguous' type of accountability, and he appears to equate legal accountability with resort to courts.[446] However, legal accountability cannot only be defined by pointing to the institutions that are called courts in various countries. The institutional variation in terms of training, structure of adjudication, and tenure of judges is profound. It is more useful, therefore, to offer an account of the attributes of legal accountability. This sheds light on why legal accountability offers certain prima facie benefits. And the existence of those benefits in turn explains the instrumental importance of these particular attributes of legal accountability. Accordingly, I would argue that the following are essential attributes of legal accountability:
(i) an individual right of petition;
(ii) a functionally independent adjudicator;
(iii)adjudicators interpret and apply publically affirmed legal standards;
(iv) adjudicators give decisions that are (a) interpretations of applicable standards, which conform to reasonably demanding professional standards of rationality, consistency, and fidelity to those standards and cannons of interpretation, (b) responsive to the principal submissions, and (c) ordinarily published;
(v) there is a remedy (which may be declaratory or coercive); and
(vi) the remedy is final (subject to appeal or reversal by due process of law).
It is not my purpose in the present essay to insist upon these attributes as being essential features or a ‘central case' of legal accountability in the sense employed in general jurisprudence. I am content to stipulate, for the purposes of this essay, that the benefits claimed in Part C below are for the adjudicative institutions that manifest these attributes, subject only to the additional proviso that the output of such adjudicators is treated with respect and comity by other public institutions and by the public at large.
3. Benefits, prima facie benefits, and costs
I argue in Part C that the prima facie benefits of legal accountability are useful means for achieving valuable ends. At the most general level, I believe that they may secure respect for the following intrinsically valuable ends: individual dignity; individual well-being; equal treatment; and fairness. Furthermore, some of the prima facie benefits also, in my view, secure the following instrumentally valuable ends: the rule of law; democratic accountability (self-government); transparency; and efficiency. Each of these is valuable because it secures further, intrinsically valuable ends, such as those given in the list above.
I call the list below prima facie benefits because whether they are real benefits in the final analysis can only be determined by offsetting their positive consequences against their costs. So, ‘participation’ (eg. through interventions, public interest standing, etc.) may appear to be a prima facie benefit, but further study may show that wide participation rights have posed significant challenges for the political process.[447] We will only know whether a prima facie benefit is a real benefit after accounting for such costs. That exercise, furthermore, must be contextual. This therefore raises the question of whether there is any point in speaking of prima facie benefits in the first place. Why not simply defer any question of the value of legal accountability to a wholly contextual analysis that is both jurisdiction- and issue-specific? Would that not provide for a richer set of relevant variables? It certainly would, but in my view there is still a need for a general account of the prima facie benefits of legal accountability. First, it offers an index of putative general benefits, which can be subject to fruitful challenge at a general level, and not just in isolated circumstances. Much of the analysis below is concerned with those general, ‘up-front’ challenges to the prima facie benefits that I claim for legal accountability.
If general arguments are always liable to the criticism of being non-contextual, so contextual arguments are liable to being distinguished as non-generalizable. And furthermore, a general theme emerges in my treatment there. A number of the objections to the prima facie benefits of accountability do not amount to refutations of the prima facie benefit. They amount to qualifications, ones that I believe are addressed through the deployment of interpretive doctrines or curial attitudes that manifest proper judicial restraint. (Such objections may, however, be strong reasons to avoid extending the province of legal accountability too far in particular contexts, for instance where the curative effect of the proposed solution is unrealistic).Second, a prima facie list helps clarify the institutional component of the instrumentalist claim about law’s value. In many discussions about the need for law reform, one hears about the need to respect rights, the separation of powers, the rule of law, and to provide greater accountability. Yet there is a perennial risk of obfuscation when one’s case for change is entirely based on such concepts, because people disagree fundamentally on their requirements. A focus on the prima facie benefits listed below, which I claim are connected to desirable ends, may help better inform any such discussions by directing our attention towards a set of stipulations that are liable to proof or rebuttal in terms that will command wider approval.
C.