Functions of Law

Functions and Functionalism

Therefore, the quest for the social functions of law goes hand-in-hand with the evolution of sociology of law in all its stages, and scholars often place it at the core of sociolegal reflection. Think of Émile Durkheim (1858–1917), the pioneer of functional explanation in sociology. According to his theories, which portray law as the symbol of social solidarity, one may distinguish the diverse shapes that law assumes historically based on the functions performed by the diverse sanctions through which societies react to deviance. In simpler societies, held together by “mechanical” solidarity, one encounters deviance by repressive sanctions, functionally addressed to restore social links on a predominantly symbolic level. By contrast, in more complex and differentiated societies, whose solidarity is “organic,”restitutive sanctions increasingly restore social links, as they are functionally addressed to act on a predominantly material level.

Many sociologists worked throughout the twentieth century along these lines, focusing on disentangling the functions of law, which they conceived as the contribution offered by law to the equilibrium of a society, seen as a whole, whose constituent elements cooperate in keeping it in its best shape. Naturally enough, a perspective such as this displays evidence of a systemic character. One sees a whole society as a system. Single social institutions, in their turn, are subsystems, each of them performing one or more functions for the sake of the whole. Talcott Parsons (1902–1979), the most celebrated exponent of sociological functionalism, gave a significant example of this approach when he included the legal system in his general vision, stressing that the “primary function” of law is integrative and thus addressed “to mitigate the potential elements of conflict and to oil the machinery of social intercourse” (1962: 58). This [Page 611]function, he added, can only be performed successfully if four problems—also termed as functions—are solved: the legitimation of the legal system, the interpretation of legal rules, the efficiency of sanctions, and the organization of an independent jurisdiction.

In his attempt to reshape functionalism, in ways that it could evade the sharpest critiques raised against it, especially from the trenches of philosophy of science, Niklas Luhmann (1927–1998) gave a seemingly general, though more abstract, description of the functions of law. He took a more neutral notion of function as “a regulative scheme of sense that organizes a range of reciprocally equivalent performances” (1970: 14) and stated that, in an exceedingly complex and contingent world, social systems exist in that they reduce social complexity and give some stability to social expectations. The legal system—he explained—fulfils this function because it enables one to select between diverse choices on the basis of a binary code, “lawful” or “unlawful” (Recht-Unrecht), that cuts in almost automatically or, as he said, “self-referentially.” When applied to a multitude of behavioral dilemmas, this selective mechanism contributes to rendering normative social expectations—those not abandoned despite deception—more secure, harmonious, and reliable. Therefore, as Luhmann said, law “relies on the congruent generalization of social expectations of the normative kind” (1983: 105).

...