The Downfalls of Instrumentalism

Instrumentalism is exploitative, unethical, and unfair—not to mention useless. It, therefore, should be abandoned. Instrumentalism is one of many policies vying to control and explain the current trajectory of modern tort law in America. As its name reveals, the theory uses tort law as an instrument for attaining social goals such as eliminating dangerous and risky conduct to protect the physical safety of humans.

Instrumentalism is unfair. Instead of clear and forthright guidelines, the guidelines that drive the theory are ambiguous, which creates arbitrary practitioners who impose unfair and unethical sanctions. Also, instrumentalism is based not on rules of law or fundamental principles of proper conduct but instead on loose "tests" used to determine which conduct constitutes conviction leaving people confused about how to behave in order to escape punishment. This approach can only serve the individuals invested in its future and creates an unfair and ambiguous standard by which people ought to live. This approach is exploitative and unethical because it uses the punishment of actual people as test cases. You'll agree that any society is unethical that uses humans as test experiments like a scientist would use rats in her lab.

Lastly, instrumentalism will never succeed. Studies have proven that erecting social penal codes and imposing strict punishments in the form of incarceration, fines and even physical abuse doesn't deter people from imposing bodily harm on others. If the goal is to deter and dissuade people from harming others—instilling fear is useless. People are deterred from risky and dangerous activity not in least because the punishment of such behavior is severe. Deterrence then must come from another source i.e., if deterrence is possible at all.

But it's not, and government should not engage this theory because government can't deter society into peace. It will never happen. Disagreement, violence, and war is a natural part of our society and as my boy Steinbeck said in Grapes of Wrath (Chapter 14) what we need to fear most is not the bombs falling, but when the bombs stop falling. Yes, you read that right. What we need to fear is peace. Humans are not a peaceful people. And if we ever arrive at peace that means we evolved into another species. (That's why I am in law school, duh, I'm trying to capitalize on the brutal nature of humans :))

Therefore, instrumentalism should be abandoned as a viable theory of American tort law.