Kenneth M. Ehrenberg

The Functions of Law

What is the nature of law and what is the best way to discover it? This book argues that law is best understood in terms of the social functions it performs wherever it is found in human society. In order to support this claim, law is explained as a kind of institution and as a kind of artefact. To say that it is an institution is to say that it is designed for creating and conferring special statuses to people so as to alter their rights and responsibilities toward each other. To say that it is an artefact is to say that it is a tool of human creation that is designed to signal its usability to people who interact with it. This picture of laws nature is marshalled to critique theories of law that see it mainly as a product of reason or morality, understanding those theories via their conceptions of laws function. It is also used to argue against those legal positivists who see laws functions as relatively minor aspects of its nature. This method of conceptualizing laws nature helps us to explain how the law, understood as social facts, can make normative demands upon us. It also recommends a methodology for understanding law that combines elements of conceptual analysis with empirical research for uncovering the purposes to which diverse peoples put their legal activities.

Law as Plan and Artefact

Scott Shapiro’s theory that law is a social plan is helpful in seeing law essentially as a tool of human creation and as such is sympathetic to understanding law in terms of the social functions it performs, a method I argue for elsewhere. I focus here on two problems with the theory as presented. The planning theory does not adequately explain the persistence of law beyond the utility of those who implement it. Generally, plans can cease to exist as soon as those engaged in them have no more use for them. Laws however, must usually be declared invalid or otherwise nullified for them to have no further effect. Shapiro’s use of self-certification to explain how law is differentiated from other forms of social planning is ad hoc and threatens circularity when he admits it to be a matter of degree. Both of these issues can be better solved by seeing law as an institutionalised abstract artefact, with a greater emphasis upon the nature of institutions doing much of the work done by the idea of planning.

Pattern Languages and Institutional Facts: Functions and Coherences in the Law

I explore the notion of Pattern Languages, originally developed by architect Christopher Alexander and embraced in Object-Oriented computer programming, as a model of coherence for use in conjunction with an understanding of law informed by John Searle’s theory of institutional facts. Under Searle’s theory, the law can be understood both as an institution itself governed by foundational documents and practices, and as a method for creating new institutions through the codification of the assignment of functions, usually of the form “X counts as Y in circumstances C.” Pattern Languages, which are schematic templates for problem-solving, can then be developed within a legal system as a coherence constraint on the assignment of functions such that codified legal solutions do not conflict with other legal solutions to related or distinct problems. If it is possible to reduce legal enactments to such a schema, the likely result will be a greater ease of the representation of legal rules by computer systems, while the pattern language encourages progress toward an ideal of coherence.