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Lección 2.- Law as a form of social organization A.- The functions of Law
- The function of social control and social organization
- Other functions of Law B.- Law and Social Change.
- Law as a tool for social change.
- Social change and the transformation of Law.
A.-THE FUNCTIONS OF LAW.
Functional analysis of law allow us to enquiry on its use in a social system.. This kind of analysis started to be important for legal theory since the 70’s of 20th Century, combining it with structural analysis. The practical reason of this change was the appearance of the social welfare state, a kind of state that produced important changes in the legal system that could be only explained through the assumption of a new function: The distributive and promotional function. Moreover, in the theoretical circles, appeared different “funcionalist” theories in the field of legal sociology, with opposing point of views, favouring the importance of this kind of analysis (functional). The main functions of Law are: 1) Social control and social organization; 2) Resolution of conflicts; 3) Legitimization of social power.
)1 Social control and social organization function.- As we saw in lesson 1, when we stated and initial approach to the concept of law, one of its basic features is that Law is a specific form of social control and organization. Law is a response to the need of organizing society and ordering the coexistence of human beings,
achieving certains common goals. This is why law imposes certain actions as models of behavior that must be obeyed by the social group. Doing this, Law is developing a function of social control, integrating social behaviors in a normative established model and correcting (punishing) those actions we can label as “deviated” from that model^1. Every normative system performs this function of social control and social organization, not only Law. But if, as it looks like, the most effective tool to exert social control is the use of force, Law would be the normative system that achieves social control and social organization in a better way, considering that Law uses to be the product of the political power of the State, with holds the monopoly in the legitimate use of force in the modern world. This function of social control and social organization can be exerted by law through different techniques. First, It can be exerted through “protective” and “”repressive” techniques, that impose on individuals positive duties (obligations) and negative duties (prohibitions) under the threat of a negative sanction (punishment). Thus, certain behaviors are qualified as “lawful” and they are protected (compulsory and permitted behaviors), and other behaviors are qualified as “unlawful” and they are punished (forbidden behaviors). This kind of techniques are mainly developed through criminal law, and they started to be used in the classic liberal state (liberal democracy). Liberalism, as an ideology, considers the State as a necessary evil that must refrain from acting in social relations apart from those cases when it is absolutely necessary for the safeguard of individual autonomy (political liberalism) and free market (economic liberalism) (Laissez Faire).
(^1) Sobre el control social y la desviación puede consultarse FARIÑAS DULCE, M. J., «La marginación y la desviación», en VV.AA., Derechos de las minorías y de los grupos diferenciados, Escuela Libre Editorial, Madrid, 1994, pp. 199-
built under the idea of justice in a concrete case, and where the judicial function, noticed as a way to solve social conflicts, becomes very important. Some scholars, nevertheless, prefer to talk about the function of «treatment of declared conflicts», a terminology I consider more appropriate for several reasons.. First, If we consider that social structure is conflictual, and that social conflict is constant because there are different and conflicting interests –something that seems to describe society in a better way than the conception of society as a harmonious whole-, what legal system does is not to settle or to solve the conflict, but turning it into a legal one and keeping it under control, that is to say, treating it. Second, the consideration of this function as “treatment” of conflicts, instead of “resolution”, allow us to incorporate to this function not only that part of legal system that is the judicial process, but also those related with legislative and executive powers. The “treatment” of a conflict starts in the moment that law turns it into a legal one, that is to say, in the legislative and executive phases, giving to social agents persuasive legal elements about the way of acting. Only when the “treatment” of a conflict in these phases fails, and social agents consider that they are unable to “treat” the conflicto by themselves, is when law offers the possibility of carrying on treating the conflict before the courts. Third, the considering the function as “resolution” fails to see that Law, sometimes, is not only a tool to solve conflicts, but also a way of generating new conflicts. A judicial settlement in a concrete case, may be the cause of new similar cases. Finally, considering this function as judicial conflict resolution doesn´t keep in mind the existence, together with formal or judicial mechanisms of conflict resolution, of other informal or extra-judicial tools that, nevertheless, are also integrated in the legal system: mediation, arbitration, conciliation, etc..
The function of legitimization of social power is also a very important one. Law has always operated as an instrument to obtain legitimacy, acceptance and consensus for political decisions. Law even operates -from a wider point of view- in this same sense in relation not only to public authorities, but also to every person that is part of the social system. Thus, we can distinguish to phases in the fulfillment of this function. First, Law legitimates the actions of the public authorities through certain rules that state their competences, proceedings and limits of those actions. Second, law also legitimates the actions of private individuals, and it’s not unusual that these private individuals also use the legal rules and the behaviors stated in these rules as forbidden, permitted or compulsory, to justify their actions.
B.- LAW AND SOCIAL CHANGE.- This is a basic topic in legal theory and legal sociology, trying to answer different questions on the effects of legal norms-rules in society and those of social changes in law. For example, whether law is a factor of social change or an obstacle to it; Whether law should just gather social changes that already took place or should be an instrument for generating these changes through the legal norms- rules, etc. We can distinguish two main questions: Law as an instrument of social change, and social change and the transformation of Law.
- Law as an instrument of social change.- Different theories on this topic may be embraced in two main positions. First, Certain writers defend that law shold limit to reflect the social changes already happened in society, being neutral and pro-abstentionist. An example of this position is that of the writers belonging to the historical school of law and other schools that leaded the “revolt against formalism” –specially F. K. Von Savigny- who considered Law as an outcome of the volksgeist ( The spirit of the
multidisciplinary approach, analyzing the difficulties of legal authorities from legal theory, theory of legislation, theory of judicial process, legal sociology, politics, etc.
