Defending a functional kinds account of law

Mihal, Jan (2017) Defending a functional kinds account of law. Australian Journal of Legal Philosophy, 42. pp. 121-144.

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Abstract

[Extract:] That law is a functional kind - that is, that law's nature is captured by its function is a question of increasing importance in general jurisprudence. In this paper I defend a functional kinds account of law from a number of major and minor objections to law's having a functional essence. The first of these is put forward by Brian Tamanaha in his A General Jurisprudence of Law and Society where he contends that there are many other social practices that satisfy the same function as law does, that play the same role, but which are not considered to be law - I will call this the 'functional equivalents' argument. The second major argument against law having a functional essence is put forward by Leslie Green in his pieces 'The Functions of Law' and 'Law as Means' where he argues that law is not so much individuated by what it does (its functions or goals) but by how it does them (its means) - I will call this the 'law as means' argument. I then briefly explore a smaller issue arising out of Green's work before turning to Ehrenberg's latest book 'The Functions of Law'. This wide-ranging text gives two central arguments against a functional kinds approach to law. The first is based on an analogy originally given by Green but developed by Ehrenberg which compares law's myriad functions as akin to those of a Swiss Army knife. I will explore how problematic this is for a functional kinds approach to law and how it might be handled in defence of the position. I will also show that Ehrenberg's understanding of the relationship between functions and law concedes too much to an antifunctionalist view by holding that having certain functions is neither sufficient nor necessary for something to count as law - rather, functions figure necessarily in our explanations of law but not necessarily in law's existence. Even though there may be some crossover between the authors' arguments in their work, I will, for the sake of simplicity, treat each author more-or-less individually, dealing first with Tamanaha and his arguments, before moving on to Green, and finally Ehrenberg.

Item ID: 67985
Item Type: Article (Research - C1)
ISSN: 1440-4982
Date Deposited: 11 May 2021 05:55
FoR Codes: 48 LAW AND LEGAL STUDIES > 4804 Law in context > 480410 Legal theory, jurisprudence and legal interpretation @ 100%
SEO Codes: 28 EXPANDING KNOWLEDGE > 2801 Expanding knowledge > 280117 Expanding knowledge in law and legal studies @ 100%
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