On Law's Promise: Thinking about how we Think about Law's Limits

• DOI: https://doi.org/10.1108/S1059-4337(2012)0000057009
• Published date: 10 February 2012
• Pages: 201-246
• Date: 10 February 2012
• Author: Nicky Priaulx

ON LAW’S PROMISE: THINKING

ABOUT HOW WE THINK ABOUT

LAW’S LIMITS

Nicky Priaulx

ABSTRACT

If law’s foundational promise lies in the belief that it promotes the social

good, then we need to reassess the limits of that promise. Exploring the

often problematic translation of legal goods into social ones, the central

claim is that the legal discipline has been limited by a ‘‘legal imperative’’

that manifests itself in an excessive focus upon law as a social tool and

attitude of complacency in the face of law’s limits. Seeking to displace this

approach, the author argues for an attitudinal shift that expresses honesty

about limits, greater social inquisitiveness and care about law’s promise.

INTRODUCTION

The term ‘‘law’’ carries symbolic connotations of authority, of rightful power. That is

bolstering enough. Law, in all of its various kinds, need not be supplied with further

justifications for its claims of legitimacy. Every specific manifestation or instance of law,

every legal rule, every system, every legal practice, every legal claim, of every kind of law,

must always answer directly to the question of whether it is in fact good or right. Every

application of law or action in the name of law that increases human misery must be

carefully scrutinized, regardless of whether it does or does not mirror society or enhance

social order, and must stand up to a test of rightness (Tamanaha, 2001, p. 241).

Studies in Law, Politics, and Society, Volume 57, 201–246

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ISSN: 1059-4337/doi:10.1108/S1059-4337(2012)0000057009

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This chapter explores the connection between law’s promise to promote

the social good, and of particular interest, our response to law’s limits as a

social policy tool. Of course, to suggest that law is or should be a limb of

social policy or indeed that such a promise exists are far from

uncontentious propositions; but I suggest that this is the kind of approach

to the study of law that legal theory now needs to take to justify its

position in the academy. It is, I think, pretty uncontentious that the

institution of law ought to be socially valuable. On that basis, a social

policy analysis that inquires into the way that law (dis)connects and works

with a plurality of other measures targeted at the attainment of desirable

social outcomes is always surely invited. That the social good is promoted

through the force of law, is not something which can be assumed,

particularly in the face of powerful examples where the operation of the

law runs counter to precisely that aim; however, central to the problem

that this essay attempts to grapple with is that the good of ‘‘the law’’ – its

social value, its capacity to deliver broader social benefits and indeed, its

authority as a valuable societal institution, is so often taken-for-granted,

neglected or speedily skipped over. While various influences might account

for such theoretical neglect,

1

it nevertheless remains the case that the work

of de-anchoring ourselves from law in order to tackle questions around

law’s efficacy is as pressing as ever. The question of how and when law

proves instrumental to social flourishing should be central to, and ever-

present in our theorizing.

This taken-for-granted social value that the law expresses can be thought

of as a promise, or a belief in the existence of such a promise. At the most

general level, law’s promise is premised upon the belief that legal systems

work toward the attainment of social goods. For some, the notion that such

a ‘‘promise’’ exists or could even be shown to exist will seem extremely

problematic; however, for the present author, its existence is to be located at

the level of our most intuitive beliefs about what the law is for – that is, what

is literally, promising about the law. From general conceptions of an

institutionalized system of law being in some way crucial for social order, to

more specific ideations which set out what one could call ‘‘foundational

promises’’ – notably, different ideas about the social aims, objectives and

functions of particular bodies of law (e.g., administrative, international,

torts, criminal law), whether efficiency, deterrence etc; these present, in

themselves some kind of social case for law. Located there, in the murkiness

of these general conceptions of a hoped for connection between law and the

attainment of social good, is where the belief in the existence of law’s

promise can be found;

2

and it is that belief in such a promise of working

NICKY PRIAULX202

toward the attainment of social goods which affords the law a great deal of

its power, and authority over us.

3

The aspiration of promoting social goods, of course, is not specific to law.

Law offers one social mechanism among myriad approaches regarded as

holding the power to regulate human relations, ranging from the market,

institutionalized state responses such as hospitals and medical care, to

interpersonal and private individual coping strategies. From a social and

public policy perspective, these approaches may intersect with, complement

and rival legal approaches, or address social dilemmas which sit well beyond

the reach of law. We all know that law possesses limits as an organizational

tool for addressing human relations and resolving social dilemmas. Its

promise to promote social goods can only be partial, and as such, there will

be numerous pockets of human life for which the deployment of law would

be inappropriate and ineffective. It is this latter issue, limits, that sits at the

heart of this paper. Insofar as the notion that law has limits will be strikingly

obvious, quite how we respond to strikingly obvious limits-is not. What is of

interest here is extent to which we are willing to question and identify the

shortcomings of the law as a vehicle for promoting social good and to act

upon those when it becomes evident that law no longer seems to serve

society well.

The question as to whether the established legal way of dealing with

things is socially fruitful may seem to speak to a form of theorizing that has

long fallen out of fashion. Yet for as long as our work in law purports to be

concerned with society, which implicates some kind of role that law should

play for society, these practical queries about the law need to be far more

prominent in our theorizing in the legal academy. In speaking to generations

of future lawyers, engaging with policy-makers, politicians and the public(s),

we are so well-situated to raise the question and the call for action in

relation to law’s sometimes doubtful efficacy. We occupy a quite special and

privileged position, and carry a formidable social responsibility; yet in the

day-to-day work of delivering a university education, the sense of this

broader service to society can lose its primacy and urgency in the face of

other and numerous pressing tasks.

4

In this respect, the present author seeks

not to preach (nor is she in a position to);

5

rather the aim is to raise issues

for discussion about how we perform that social responsibility and how we

can perform it better. As such the chapter speaks to those circumstances

where we have doubts about the ability of the law to achieve its

foundational promise – and to try to engender a passion in others for

exploring that issue at length. Every student that pursues a career in law

whilst demanding little enquiry of the connection between their profession

On Law’s Promise: Thinking About how We Think About Law’s Limits 203