What Law Does
Structural questions dominated legal theory for a century. Norberto Bobbio argued that theorists could describe legal machinery, yet ignored what it was for.
The Classical Functions
- Organisation. Law constitutes institutions before regulating them. It does not merely constrain power; it gives power its form.
- Social control. Law directs behaviour via consequences. Émile Durkheim distinguished repressive law, which punishes, from restitutive law, which restores order.
- Conflict resolution. Law supplies both the rules to decide disputes and the institutions that apply them.
- Stabilising expectations. Niklas Luhmann noted that law secures normative expectations. These expectations persist even when broken. A breach of contract does not destroy your belief in contracts; it leads you to sue.
The Promotional Function
Bobbio showed that modern law also promotes behaviour by offering incentives rather than just threats:
| Technique | Operates by | Typical instrument |
|---|---|---|
| Repressive | Discouraging | Penalty, nullity, damages |
| Promotional | Encouraging | Subsidy, tax relief, prize |
Functional Ambiguity
Law can protect existing power, or it can enable social planning. Because it can serve opposite goals, law is functionally ambivalent.
Common pitfall: treating these functions as separate compartments. A single rule often performs multiple functions at once. The functions are distinct aspects, not isolated categories.