A classic formulation portrays bureaucracy as the characteristic modern institution, incomparably effective as the home of instrumental rationality and domination through knowledge. We often understand our legal order as controlling bureaucracy by insisting that bureaucrats “play by the rules.” Courts, in this view, uphold the rule of law in the face of a threatening purely instrumental reason. However, an understanding of the courts as the enforcers of legal rules fails to offer an account of how the legal order itself is not just another bureaucracy. This essay argues that we must look elsewhere for an understanding of the legal order as something more than bureaucratic.Burns suggests that
In our usual public discourse and debate, the rule of law is a very good thing, so good that we are committed to exporting it around the world. By contrast, bureaucracy is very bad, a threat to human freedom and flourishing. Indeed, one of the distinctively modern themes, associated with Max Weber and Franz Kafka, is “organizational gothic, with organ izations as ‘sites of darkness, labyrinths with endless corridors’; and locked doors hiding secrets shifting from the ‘dark street’ to the ‘cramped office’ ...” So it would seem to be a very simple thing to distinguish a legal order from a bureaucracy. Alas, it turns out not to be so. Our notions of the rule of law and of bureaucracy are far from univocal. Indeed, they seem “essentially contested.”
Casting some light on this distinction is not simply a matter of attaining conceptual clarity for its own sake. One of our major political tasks concerns what Lon Fuller called our “modes of social ordering,” what kinds of institutions and practices are appropriate to bring good order to the more or less distinct realms of social life. Where should we resort to informal bureaucratized psychological pressure, as we do in our criminal justice system 95% of the time? Where should we rely on the instrumental application of social scientific methods, as we mainly do in Antitrust Law? Where should we rely on the broadly clinical judgment of administrators “bred to the facts” and committed to the relatively unconstrained definitions of agency purpose? Where is it important to strictly follow predictable formalist modes of legal reasoning, designed to enhance predictability and control official discretion? Where should we provide plenary narrative - dramatic consideration of a human situation that relativizes “the rule of law as a law of rules,” as we do in the relatively few jury trials we still conduct. Some of these approaches can fairly be called bureaucratic, and some not, and so it is useful to get a grip on the practical meaning of the terms.
My argument here proceeds in twelve steps. First, I describe why (almost) no one wants to be a bureaucracy and why American lawyers would recoil from considering our legal order to be just another bureaucracy. Second, I provide a classical understanding of bureaucracy that still has power, as a form of social ordering that effectively deploys instrumental reason in the service of a predetermined goal set by a sovereign will. Third, I recount a familiar understanding of the relationship between courts and bureaucracies, in which courts impose rules that constrain the wholly instrumental pursuit of those goals. Fourth, I puzzle over the obvious problem for this latter understanding, namely that bureaucracies can be highly rule-bound without ceasing to be bureaucracies. Fifth, I concede that courts may have a different attitude toward rules than do bureaucracies, but that this distinction does not necessarily signal a difference in kind. And, sixth, post-formalist courts have relaxed that different attitude to the point where courts begin to look like premodern bureaucracies. Still and this is my seventh point, there remain aspects of our legal order that are discontinuous with bureaucratic ordering. They are, eighth, currently under siege, something that may simply pose a question of political will or, more ominously, reflect an inevitable “the bureaucratization of the world” and the epochal dominance of instrumental reason in modernity. Ninth, these residual elements in our legal order still allow some judges and juries to realize the values implicit in our deepest convictions – what Paul Riceour called an ethics already realized – and, tenth, allow us to make judgments of relative importance among the inevitably competing values in a world where “justice is conflict.” Eleventh, on the theoretical level, that would suggest an account of the way in which our trial and appellate procedures actually could provide access to the valid norms implicit in our common life. Twelfth, in our post-modern world, this theoretical account would probably rely on a kind of realism in which we know these norms because we are immersed in them through our practices.