Law is a social construct that shapes politics, economics, history and society in many ways. It aims to order, regulate and mediate relations between people. Its specific function is to protect the normative structure of expectations in a community against disappointments and it does so by establishing standards, imposing sanctions and resolving conflicts and disputes. This makes it different from other social behavioral norms such as morality and customs, the sanctioning mechanisms of which are hardly institutionalized.
This distinguishing feature of law makes it a fundamentally political concept that is not to be confused with other types of norms such as aesthetics, ethics or religion. Law also differs from these other norms in that it is essentially coercive, meaning it has the capacity to force people to act in accordance with its rules. The fact that law is capable of coercion is one reason why it has been defined by various social thinkers in different ways.
Roscoe Pound, for example, considered it a social institution that acts to meet social wants and demands. This means that the law is essentially a tool of social engineering, in which conflicting pulls of political philosophy, economic interests and ethical values compete for recognition. It is this characteristic that makes the law a controversial and highly complex construct.
As law develops, the social needs and expectations it meets become more complex and its capacity to meet these becomes increasingly restricted. The tensions that result from this, primarily between the ideal of legal equality and the socioeconomic inequalities of modern societies, present an important challenge to its legitimacy. Some theorists, such as Max Weber, have argued that this is due to an increasing politicization of the law, which is the cause of its increased juridification of social life.
This process is also accompanied by the emergence of a new type of lawmaking, which is increasingly done by the state, rather than by societal actors. This has led to the development of legal forms of practice such as contract and administrative law, which involve regulating a society’s economic relations and its administrative structures.
Other forms of law include criminal and civil law, which involve the resolution of disputes between individuals or between the state and its citizens. There are also legal theories, such as constitutional law and liberal constitutionalism, that aim to confine the claims of politics to authority by limiting its scope through the creation of a legal system based on equality and a separation between the spheres of power. These ideologies are a response to the growing juridification of social life and the need to reconcile the conflicting claims of politics, the economy and ethical values. This is an extract from ‘The Problem of Law: Essays on the Nature and Philosophy of Law’, by Richard Duff (2019). For more information about this book or to purchase it, please click here. For permission to use this extract, contact the publisher.