The Functions of Law

In general jurisprudence, discussion of law's function(s) is rarely sustained. Natural law theorists conceptualize law in terms of its proper moral purpose, such as promotion of the common good. This could be understood as a type of functionalist explanation, but the focus is not really on the function(s) but more so on the essential moral quality of law. Legal positivists sometimes briefly refer to the function(s) of law, but in their standard search for law's necessary features typically restrict their accounts to explanation of law's mode of existence rather than what law might or might not do as a contingent matter. According to this familiar division, either one adopts a morally committed notion of law's functionality or one leaves discussion of functionality to other disciplines, such as sociology of law, which focus on contingent features and relations. In The Functions of Law, Ken Ehrenberg sets out to defend something of a middle ground approach, though his perspective is still a broadly positivist one. As he says, his approach recognizes ‘the centrality of law's functionality to any adequate explanation of the phenomenon’, but does not ‘require the theorist to endorse that functionality or law as the best means of performing it’ (p. 2). In introducing and defending this approach, Ehrenberg offers several helpful contributions to thinking about law's functionality: that law's functionality could be central to understanding law even though law might fail to fulfil its function(s); that law's functionality need not be explained in a way which identifies a general function unique to law; and that law's functionality is essentially tied to its nature as ‘a genre of institutionalized abstract artefact’ (p. 12). Ehrenberg's development of the view of law as an institutionalized abstract artefact is particularly valuable, and engages with the best work in contemporary philosophy on institutions and artefacts. His discussion of the different senses of function—biological functions v. design or artefactual functions, proper functions v. use functions, unintended, latent, and Cummins functions—is also tremendously beneficial in clarifying and assessing a range of claims about functions in general and functions of law in particular. Any account of law's functionality will need to respect these distinctions.

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