Legal Systems, Intentionality, and a Functional Explanation of Law

Abstract

One of the main questions raised by Ken Ehrenberg's book The Functions of Law (OUP, 2016) is how to remain a legal positivist and still adhere to the view that law should best be understood in terms of its ends or functions. Ehrenberg illuminatingly provides answers to both sides of the question by exposing his ontological understanding of law, claiming that law is best understood as a genre or kind of institutionalised abstract artifact. While I in general agree with Ehrenberg's analysis of the artifactual and institutional character of law and share a great many ideas he elaborated in the book, I still have some doubts and reservations regarding some of the particulars of his theoretical position. For the purpose of this comment, I will limit myself to three points. The first regards Ehrenberg's identification of the object of inquiry and the possibility of making ontological inferences from individual laws to law as a type (genre or kind). The second concerns his explanation of the artifactual character of customary laws and his general view on the form and degree of intentionality required for the artifact to be brought into existence. The third refers to the methodology he advocates for getting to the general notion of laws' functions and his characterization of law's function stemming from law's artifactual and institutional character.

Keywords: Kenneth Ehrenberg, functions of law, legal systems, artifacts, institutions