THE FUNCTIONS OF LAW by Kenneth Ehrenberg. New York: Oxford University Press, 2016. 217pp. Cloth $95.00. ISBN 978-0-19-967747-4.
Reviewed by Whitley Kaufman, Department of Philosophy, University of Massachusetts Lowell. Email: whitley_kaufman@uml.edu.
Kenneth Ehrenberg states that the aim in his new book THE FUNCTIONS OF LAW is to help understand the “purposes, plans, and goals” of law, which will, he thinks, ultimately help us better understand “ourselves” (p. 198). More specifically, the book is an entry into the Legal Positivist/Natural Law debate, a debate that has been going on for well over a century. The central issue in this debate is how to explain the normativity of law: why we feel that law is binding on us. The book will not be easy reading for those not well-versed in this debate; Ehrenberg assumes a lot of background knowledge of the issues, and much of the book is concerned with discussing recent developments especially in the positivist camp. Ehrenberg broadly endorses the positivist position, and seems to aim the book at other positivists, though he is often less than clear in the book about just where he stands.
The basic thesis of the book is a defense of the idea that the law should be understood in terms of its functions. To many readers it will no doubt come across as surprising that such a position needs to be defended: is it not obvious that law, like any human institution, serves various functions in society? However, some legal positivists have been concerned to deny such a functional view, apparently as a reaction against the Natural Law position. It is not entirely clear what it would even mean to deny that law is a functional entity. Apparently, some positivists think that law has too many different sorts of goals for it to be uniquely characterized in terms of its functions. But as Ehrenberg responds, law can have multiple functions, and it can share its functions with other institutions, yet it is no less a functional entity for that. This seems very reasonable, but one is left wondering why positivists would be motivated to take such an odd position, and it would be have been useful to further explore this position.
The book is argued at a highly abstract level, so much so that many non-philosophers (and many philosophers not familiar with the positivist/Natural Law debate) may find it challenging to read. For example, though the central topic of the book is the functions of law, there is no actual discussion of what those functions are until the very end of the book, in Chapter 8 entitled “The Functions Themselves.” Here, the author provides an overview of the literature, describing how different writers have described the functions of law. These functions include creating social order, solving coordination problems, providing standards of behavior, and of course promoting justice and the common good. Some readers may wish that this sort of discussion constituted the main body of the book rather than a brief discussion at the end, given the goal of the book to help us understand the purposes and goals of law.
Ehrenberg’s method of doing philosophy may also make this difficult reading for many non-philosophers. Consider for example the amount of conceptual apparatus introduced to explain how a stone wall can function as a boundary (p. 34). To explain this fact, Ehrenberg draws on “collective intentions,” “social facts,” “impersonal deontic powers,” “institutional status,” “status functions,” types versus tokens, and “status function codification.” It is by no means clear that introducing all this quasi-technical jargon effectively clarifies the problem rather than complicates it. This is not to deny the difficulty of the issue: how does a stone wall take on social significance? It is essentially the same problem of explaining how law can function by creating rights, duties, and obligations. Much of the book is devoted to this method of explanation by introducing new distinctions; Ehrenberg for instance draws on proper versus Cummins functions, constitutive [*89] versus regulative rules, collective acceptance versus teleological accounts, functional versus modal kinds. All of these distinctions are controversial and problematic in themselves. I think there should be a high bar in introducing new and more complex distinctions: do they prove their usefulness by helping us understand and explain the topic in question? Do these distinctions explain how a stone wall can be a boundary marker? It is not clear to me that they do.
The author’s basic thesis is that law as a functional entity can be defined as an “institutionalized abstract artifact.” As he explains,
"To say that law is a kind of institutionalized abstract artifact is to suggest that we pay special attention to three features of law in discussing its nature. It is to say that it is something made with purpose by human beings and to be understood in terms of that purpose. However, unlike many other artifacts, it is not a physical object. But its abstraction should not be understood to suggest something unimportant or ephemeral. This is where its institutionality is a defining factor. As an institution, it is created with a view to a certain permanence. At the same time, it is created in order to alter the norms that apply to people who are parts of it or subject to it" (p. 120).
Given the extremely high level of abstraction of this claim, it is difficult to assess it. What would it mean to deny any of these features? What for example would it mean to claim that law is not an institution? Does anybody claim this? And how is the claim more than a truism? Moreover, the notion of an ‘institution’ is itself so vague and open-ended that it is not clear what this gets us. The stock market is an institution; science is an institution; even baseball and Wal-Mart can be called institutions. So how does calling law an institution help explain the distinctive features of law? Ehrenberg declares that the way institutions work is by “creating or altering artificial statuses conveying contextual deontic powers” (p. 191). That is, shorn of the quasi-technical language, Ehrenberg is saying that institutions create rights and duties. But does the idea of an “institution” explain how and why this happens or, as one suspects, presuppose it? It would seem only to push the question back: what is the source of an institution’s normative authority – is it some social fact about the institution, or is it the institution’s conformity to higher, preexistent moral principles?
To his credit, Ehrenberg regularly acknowledges in the book the concern that his theory may be accused of not being useful either in an explanatory sense or in helping us modify and guide our system of law. He observes that “positivists generally take pride in the fact that their theories have no practical implications on the way that law is to be practiced” (p. 98). Many readers will be astonished at this assertion, and many philosophers (myself included) may cringe at the notion that philosophical theories are meant to be useless. If a theory is useless, then what is the point of creating it? Presumably the positivists mean that the theory serves an explanatory function even if makes no concrete recommendations. But if a theory has genuine explanatory power, then it is difficult to see how it would not be useful, in helping us understand the goals of law and how to better achieve them.
Ehrenberg does not clearly indicate whether he agrees with this position, nor does he explore it in detail, though he does seem to assume that a theory of law must be useful. It would have been helpful to explain that this rather unusual positivist view seems to stem the assumption of extreme moral subjectivism within legal positivism. A basic assumption of positivism in general has long been a sharp fact/value dichotomy, where facts are “objective” and values are “subjective.” Therefore, to be properly “scientific” about law requires that one not judge or endorse the law in a moral sense, but merely examine it as a “social fact.” Hence the positivist insistence on “neutrality” is a recurrent theme in this book (e.g. 2, 7, 18, 37, 181). Again, one wishes that the author took a stronger stand on this claim, and explained whether he endorsed it. Ehrenberg raises the [*90] issue of moral subjectivism, for instance in the following passage: "If propositions of morality have no truth value, all the more reason why the truth of legal propositions—which are frequently true or false—cannot depend upon them. If there is no such thing as true propositions of morality, there would again be no fact of the matter about some questions of legal validity, which would be to place it outside the class of what is humanly determined" (p. 91).
The position is stated as a hypothetical, leaving us wondering if Ehrenberg takes it as true or not. In fact, according to recent surveys, the large majority of philosophers reject ethical subjectivism. One is left wondering what the implications would be of rejecting moral subjectivism; would that undercut a key tenet of legal positivism?
To the average reader, the idea that one should be neutral about law is hardly self-evident. When one sees an injustice in the legal system (e.g. racial disparities in police use of force), isn’t there a moral responsibility – even for the scholar – not to be neutral? If the purpose of law is to establish justice, what is the problem with making recommendations as to how the legal system can be reformed to better achieve its goals? Indeed, in a functionalist theory of law, this would seem to be a rather obvious implication: the purpose of the theory should be, at least in part, to help understand how the law can achieve its stated functions – or even to criticize the functions that it aims at. If an implication of legal positivism is that one must take a stance of strict neutrality towards the law, then so much the worse for legal positivism. Why this fetish of neutrality?
In general this is an intelligent and thoughtful book, even if (as I have argued) one would like to see more of a descent from the high level of abstraction into concrete legal issues. It will no doubt be of value to those more immersed in the legal positivist project. Personally, I wish the author had made the book more accessible to both philosophers and non-philosophers as well as those who are not deeply familiar with this debate. This could have been accomplished, for instance, by presenting a longer introductory chapter giving a broad overview of the debate and just what is at stake. Doing so would broaden his potential readership. Certainly the issues in this debate are of great importance: what is law? How does it work? What is its function in society? The questions are of course immense and there remains much work to be done in addressing them.
© Copyright 2018 by author, Whitley Kaufman.
