# What Law Is For Law I · Foundations of Law · https://tryals.app/learn/law-i/what-law-is-for ## 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. ## Practice questions 8 of this lesson's 14 practice questions, with answers. The full set is in the app. ### 1. Sort each provision by the function of law it most directly performs. **Answer:** - Organisation: Regulator's powers, Dissolving parliament - Social control: Species sale ban, Emissions fine - Conflict resolution: Consumer claim venue, Boundary proof rule **Why:** The third column is easy to under-populate, because rules about burden of proof and jurisdiction feel procedural rather than substantive. They are the conflict-resolution function in its purest form: without them the disagreement about the rule becomes a second dispute stacked on the first. Page: https://tryals.app/practice/law-i/what-law-is-for/sort-each-provision-by-the-function-of-law-it-most-directly-performs ### 2. Why is Bobbio's promotional function invisible to a theory built only on sanctions? A. Promotional norms attach an advantage to desired conduct rather than a penalty to undesired conduct B. Nothing is inflicted on someone who declines the advantage C. Promotional norms are not published in the official gazette D. The instruments are subsidies, tax reliefs and favourable statuses rather than punishments **Answer:** A. Promotional norms attach an advantage to desired conduct rather than a penalty to undesired conduct; B. Nothing is inflicted on someone who declines the advantage; D. The instruments are subsidies, tax reliefs and favourable statuses rather than punishments **Why:** A sanction-based theory has a detector calibrated for one signal, so it registers nothing when a statute offers a deduction for insulating a building. The third option is simply untrue, promotional norms go through the same legislative channels and the same gazette, which is part of why the blind spot is theoretical rather than practical. Page: https://tryals.app/practice/law-i/what-law-is-for/why-is-bobbios-promotional-function-invisible-to-a-theory-built-only ### 3. Luhmann distinguishes normative expectations from purely cognitive ones by noting that normative expectations persist even when breached. What follows from this distinction when a party suffers a contractual breach? A. The victim treats the breach as a reason to seek redress rather than abandon the norm B. The victim revises expectations downward so as to adapt realistically to the breach C. The victim views the rule as structurally invalidated until formal restitution occurs D. The victim shifts from repressive legal mechanisms towards promotional incentives **Answer:** A. The victim treats the breach as a reason to seek redress rather than abandon the norm **Why:** Cognitive expectations adapt to counter-instances by learning and revising forecasts, whereas normative expectations maintain the validity of the standard despite disappointment. The victim does not abandon the rule or view it as void, but affirms it through legal recourse. Page: https://tryals.app/practice/law-i/what-law-is-for/luhmann-distinguishes-normative-expectations-from-purely-cognitive ### 4. Bobbio argued that modern law works not only by repressing undesired conduct but also by promoting desired conduct. **Answer:** True **Why:** **True**, and the argument was aimed at his own discipline. Legal theory built on the sanction could describe the criminal code beautifully and had no vocabulary for the enormous promotional apparatus of the modern state — subsidies, reliefs, prizes, favourable statuses — which is where a great deal of contemporary regulation actually happens. Page: https://tryals.app/practice/law-i/what-law-is-for/bobbio-argued-that-modern-law-works-not-only-by-repressing-undesired ### 5. Complete the account of the functions of law. **Answer:** Durkheim distinguished **repressive** law, which punishes, from restitutive law, which restores a disturbed relation. Luhmann described law as generalising **normative** expectations, which stay stable even when they are disappointed. Bobbio added the **promotional** function, which works through advantages rather than penalties. The claim that law both conserves and transforms is the thesis of its functional **ambivalence**. **Why:** The second blank carries more than it looks. A **factual** expectation is abandoned when reality contradicts it; a **normative** one is not, which is why a breach of contract makes you sue rather than stop believing that contracts bind. Law is the institution that keeps expectations in the second category. Page: https://tryals.app/practice/law-i/what-law-is-for/complete-the-account-of-the-functions-of-law ### 6. Arrange these steps in the order the conflict-resolution function requires them. **Answer:** 1. A norm lays down the criterion by which the dispute is to be decided 2. A norm designates which organ decides 3. A norm fixes the procedure the organ must follow 4. The organ applies the criterion and decides 5. The decision becomes binding and can be enforced **Why:** The last step is the one that separates legal resolution from mediation or advice. A decision that cannot be enforced settles the dispute only for as long as both parties want it settled, which is exactly the situation the whole apparatus exists to escape. Page: https://tryals.app/practice/law-i/what-law-is-for/arrange-these-steps-in-the-order-the-conflict-resolution-function ### 7. Arrange these works of functional analysis in chronological order. **Answer:** 1. Ihering, Der Zweck im Recht, 1877 2. Durkheim, De la division du travail social, 1893 3. Parsons, The Social System, 1951 4. Luhmann, Rechtssoziologie, 1972 5. Bobbio, Dalla struttura alla funzione, 1977 **Why:** A century separates the first from the last, and the shape of the question changes across it. Ihering and Durkheim ask what law does for a society; Parsons and Luhmann ask how it does it as a system; Bobbio turns the question back on legal theory and asks why the discipline had stopped asking. Page: https://tryals.app/practice/law-i/what-law-is-for/arrange-these-works-of-functional-analysis-in-chronological-order ### 8. Match each instrument to the technique it uses. **Answer:** - A penalty for discharging waste without a permit → Repressive: a penalty attached to undesired conduct - A tax deduction for insulating a building → Promotional: an advantage attached to desired conduct - Nullity of a contract made without the required form → Repressive by deprivation of legal effect - A favourable status for firms meeting an environmental standard → Promotional by conferring an advantageous position **Why:** The nullity case is the interesting one. Nothing is inflicted on the party — no fine, no imprisonment — yet the legal effect they wanted is withheld. It belongs with the repressive technique because it discourages, and it shows that the technique does not require a punishment in the ordinary sense. Page: https://tryals.app/practice/law-i/what-law-is-for/match-each-instrument-to-the-technique-it-uses