Law and Method, april 2015

Law and Functionalism: The Limited Function of Law

Bert van Roermund

Noten

  • * This paper is a rewritten version of a presentation I gave at the 5th MetaLawEcon workshop What is law for?, 11-12 December 2014, University of Debrecen Faculty of Law. I would like to thank the conveners of this workshop, Peter Cserne and Mariusz Golecki, for having me as an invited speaker, and the participants for various useful comments. I also thank mrs. Anneke Stigter for linguistic corrections.
  • 1 In Nagel 1956.

  • 2 Emmet 1967, p. 258.

  • 3 Pettit 2002, p. 247.

  • 4 Pettit 2002, p. 253.

  • 5 Rousseau 1964 (1762), vol. 2, p. 11.

  • 6 Rousseau 1964 (1762), vol. 3, p. 9.

  • 7 The question arises if such neutrality makes functionalism a solid partner in doctrinal legal scholarship?

  • 8 One is reminded of Wittgenstein 1953, par 124: ‘Philosophy may in no way interfere with the actual use of language; it can in the end only describe it. (…) It leaves everything as it is.’

  • 9 There is a vast body of literature on this mode of intentionality. I refer to work by Bratman, Gilbert, Pettit, Searle, Tuomela, and many others. See also the accumulated literature in the bibliography at <www.helsinki.fi/~pylikosk/collint/>.

  • 10 Waldenfels 2001, 140.

  • 11 On the reflexivity of intentions see Castañeda 1975 and his earlier papers referred to there; similar arguments are made by Pettit, e.g., Pettit 2000, p. 80ff.

  • 12 Cf. Ricoeur 1990 and references there.

  • 13 Note that in Aristotelian ontology, telos is inherently reflexive. For its point that everything strives towards some purpose, or a purpose, but towards its (own) purpose.

  • 14 Commenting on Nagel, Emmet (1967) concluded, that ‘it is misleading to speak of the function of a practice, belief, or institution tout court. It may have a function in relation to a certain interest in a certain context, and this itself may be a disfunction in relation to other interests’. She also emphasizes that, all in all, functional accounts in sociology ‘(…) even if they are not themselves teleological, carry an indirect teleological implication in that if something is said to have a function, it has one in relation to some value, interest, or purpose held by some person or group within the society (…). Where no value is stated, the presumption tends to be that what is served is the preservation of the society as an ongoing concern.’

  • 15 Obviously, this is particularly a tenet of economic analysis of law, or more generally, a social science approach to law. Cf. Shavell & Polinsky 2007 in their Preface (p. xi): ‘Law can be viewed as a body of rules and legal sanctions that channel behavior in socially desirable directions – for example, by encouraging individuals to take proper precautions to prevent accidents or by discouraging competitors from colluding to raise prices.’ Famously, Kaplow & Shavell 2002 argued that there is no specific meaning in fairness that could not be covered by ‘welfare’ as analyzed by economics; i.e., that law is ultimately about welfare behavior. Because economic analysis of law increasingly integrates the ‘behavioral turn’ in economics generally (buzzword ‘behavioral economics’), this alleged role of law has appeared in a new key. For a seminal paper see already Jolls, Sunstein & Thaler 1998.

  • 16 The roots of this conception lie in the idea of law as a matter of ‘social engineering’ (Roscoe Pound), adequately captured and modernized by Summers 1982a and 1982b. Exclusively instrumentalist versions of this basically sound conception were criticized in The Netherlands by Foqué & ’t Hart 1990 and recently by Witteveen 2015; see literature there.

  • 17 Not surprisingly (see below under (3)), this view is in the background, primarily, of research in specific legal areas, such as environmental law, labor law, IP law, health law, and their ilk. It should be distinguished from, on the one hand, economic analysis of law, and, on the other, from Robert Alexy’s theory of constitutional rights as ‘optimizing principles’. Cf. Alexy 2002.

  • 18 Although the volume is on environmental law, the statement on law in general at (Y Le Bouthillier, Alfie Cohen, M. et al. 2012), p. 17 is a fine example of this basically natural law view: ‘Distributive justice represents an ethical imperative based on the notion of moral reciprocity, in which all human beings are treated as equals. (…) Since all human beings are born free and equal in dignity and rights, values and policies should be legitimized through individual consent, equal rights, and democratic procedures rather than through utilitarian philosophies based on abstract notions of welfare or economic efficiency.’

  • 19 Biotechnology Directive 98/44, which is said to have ‘generated some of the most intensive debates in EU political history’ (Paton & Denoon 2011, p. 519).

  • 20 Cf. European Court of Justice 18 October 2013, case C-34/10 (Brüstle/Greenpeace).

  • 21 Cf. Twining & Miers 1991.

  • 22 Cf. Van Roermund 2013.

  • 23 In this sense Dworkin was right about principles (and rights) as trumps on policies.

  • 24 Cf. Arendt 1973 (1951), p. 299; see also Lindahl 2013.

  • 25 Habermas 1992; Maus 1994; Schreckenberger 1978.

  • 26 Hart 1961, p. 189ff.

  • 27 The greatest difficulty, however, which also Hart passes by in silence, comes with the functional meaning of needs from a first-person vantage point: what else do they command than their satisfaction? Self-preservation perhaps? Then how would one construe selfhood from sheer needs?

  • 28 Cf. Polanyi 1962 (1958); for recent revival of embodied knowledge see, a.o., Rowlands 2010.

  • 29 Cf. the paradigmatic tale of The shadow of a donkey’, in particular in the elaborated version by Christoph Martin Wieland (1733-1813) in Die Abderiten, Book IV: Der Process um des Esels Schatten, where the name of the man who rented the donkey is Struthion, and the name of the donkey’s owner is Anthrax.

  • 30 Cf. a.o., Schauer 1985; Van der Burg 1991.

  • 31 Hobbes 1973 (1651), ch. XXVI.

  • 32 Raz 1984 (1979) and 2009.

  • 33 Cf. Rousseau 1964 (1762): on the basis of the social contract, coercion amounts to ‘forcing someone to be free’.

  • 34 On the reflexivity of intentions see Castañeda 1975 and his earlier papers referred to there; similar arguments are made by Pettit, e.g., Pettit 2000, p. 80ff.

  • 35 Cf. Ricoeur 1990 and references there.

  • 36 Note that in Aristotelian ontology, telos is inherently reflexive. For its point that everything strives towards some purpose, or a purpose, but towards its (own) purpose.

  • 37 Commenting on Nagel, Emmet (1967) concluded, that ‘it is misleading to speak of the function of a practice, belief, or institution tout court. It may have a function in relation to a certain interest in a certain context, and this itself may be a disfunction in relation to other interests’. She also emphasizes that, all in all, functional accounts in sociology ‘(…) even if they are not themselves teleological, carry an indirect teleological implication in that if something is said to have a function, it has one in relation to some value, interest, or purpose held by some person or group within the society (…). Where no value is stated, the presumption tends to be that what is served is the preservation of the society as an ongoing concern.’

  • 38 Obviously, this is particularly a tenet of economic analysis of law, or more generally, a social science approach to law. Cf. Shavell & Polinsky 2007 in their Preface (p. xi): ‘Law can be viewed as a body of rules and legal sanctions that channel behavior in socially desirable directions – for example, by encouraging individuals to take proper precautions to prevent accidents or by discouraging competitors from colluding to raise prices.’ Famously, Kaplow & Shavell 2002 argued that there is no specific meaning in fairness that could not be covered by ‘welfare’ as analyzed by economics; i.e., that law is ultimately about welfare behavior. Because economic analysis of law increasingly integrates the ‘behavioral turn’ in economics generally (buzzword ‘behavioral economics’), this alleged role of law has appeared in a new key. For a seminal paper see already Jolls, Sunstein & Thaler 1998.

  • 39 The roots of this conception lie in the idea of law as a matter of ‘social engineering’ (Roscoe Pound), adequately captured and modernized by Summers 1982a and 1982b. Exclusively instrumentalist versions of this basically sound conception were criticized in The Netherlands by Foqué & ’t Hart 1990 and recently by Witteveen 2015; see literature there.

  • 40 Not surprisingly (see below under (3)), this view is in the background, primarily, of research in specific legal areas, such as environmental law, labor law, IP law, health law, and their ilk. It should be distinguished from, on the one hand, economic analysis of law, and, on the other, from Robert Alexy’s theory of constitutional rights as ‘optimizing principles’. Cf. Alexy 2002.

  • 41 Although the volume is on environmental law, the statement on law in general at (Y Le Bouthillier, Alfie Cohen, M. et al. 2012), p. 17 is a fine example of this basically natural law view: ‘Distributive justice represents an ethical imperative based on the notion of moral reciprocity, in which all human beings are treated as equals. (…) Since all human beings are born free and equal in dignity and rights, values and policies should be legitimized through individual consent, equal rights, and democratic procedures rather than through utilitarian philosophies based on abstract notions of welfare or economic efficiency.’

  • 42 Biotechnology Directive 98/44, which is said to have ‘generated some of the most intensive debates in EU political history’ (Paton & Denoon 2011, p. 519).

  • 43 Cf. European Court of Justice 18 October 2013, case C-34/10 (Brüstle/Greenpeace).

  • 44 Cf. Twining & Miers 1991.

  • 45 Cf. Van Roermund 2013.

  • 46 In this sense Dworkin was right about principles (and rights) as trumps on policies.

  • 47 Cf. Arendt 1973 (1951), p. 299; see also Lindahl 2013.

  • 48 Habermas 1992; Maus 1994; Schreckenberger 1978.

  • 49 Hart 1961, p. 189ff.

  • 50 The greatest difficulty, however, which also Hart passes by in silence, comes with the functional meaning of needs from a first-person vantage point: what else do they command than their satisfaction? Self-preservation perhaps? Then how would one construe selfhood from sheer needs?

  • 51 Cf. Polanyi 1962 (1958); for recent revival of embodied knowledge see, a.o., Rowlands 2010.

  • 52 Cf. the paradigmatic tale of The shadow of a donkey’, in particular in the elaborated version by Christoph Martin Wieland (1733-1813) in Die Abderiten, Book IV: Der Process um des Esels Schatten, where the name of the man who rented the donkey is Struthion, and the name of the donkey’s owner is Anthrax.

  • 53 Cf. a.o., Schauer 1985; Van der Burg 1991.

  • 54 Hobbes 1973 (1651), ch. XXVI.

  • 55 Raz 1984 (1979) and 2009.

  • 56 Cf. Rousseau 1964 (1762): on the basis of the social contract, coercion amounts to ‘forcing someone to be free’.

  • 57 Cf. Polanyi 1962 (1958); for recent revival of embodied knowledge see, a.o., Rowlands 2010.

  • 58 Cf. the paradigmatic tale of The shadow of a donkey’, in particular in the elaborated version by Christoph Martin Wieland (1733-1813) in Die Abderiten, Book IV: Der Process um des Esels Schatten, where the name of the man who rented the donkey is Struthion, and the name of the donkey’s owner is Anthrax.

  • 59 Cf. a.o., Schauer 1985; Van der Burg 1991.

  • 60 Hobbes 1973 (1651), ch. XXVI.

  • 61 Raz 1984 (1979) and 2009.

  • 62 Cf. Rousseau 1964 (1762): on the basis of the social contract, coercion amounts to ‘forcing someone to be free’.

  • 63 As is often the case in hearings taking place in a Truth and Reconciliation setting.

  • 64 Luhmann 1981, p. 46 ff.

  • 65 Cf. a.o., Luhmann 1987, p. 201; on a thumbnail: ‘Recht gilt weil es gilt’.

  • 66 If I would dare to criticize Habermas’s theory of law, it would be that he does not give any account of the transition from deliberation to decision. Note that Habermas’s early work characterizes Diskurs as ‘Gegeninstitution schlechthin’ (Habermas & Luhmann 1971, p. 201), where later on (Habermas 1992) he applies it to law – for many theorists the paragon of institutions. He seems to think that in law a decision is but a conclusion from a deliberation. Some legal theorists have learnt to reject this as ‘legalism’. Cf. Shklar 1964.

  • 67 Cf. Pettit 2000, p. 106ff and references there.