COGITO, VOLUME 12, NUMBER 2, 1!l98, pp. 117124 The Functions of Law LESLIE GREEN We often think oflaw as fulfilling certain social functions; for instance, it is said to guide behaviour, maintain order, settle disputes, and provide benefits and services. In the social sciences, more general claims are also made- that law stabilizes the dominant mode of production, promotes economic efficiency, se- cures patriarchy, and so on. 1 What do these claims mean, and what do they contribute to our understanding oflaw as a social institution? Those are the questions I want to explore here. 1. What are functions? The functions of some thing are consequences or effects that it has; but not all of its conse- quences or effects count as its functions. Flood- lights produce both light and heat, but their function is to produce light, not heat. The heart pumps blood and also makes thumping noises; but its function is to pump blood, not to make noises-that is merely a byproduct of its func- tions. Suppose a legal system settles disputes, secures the power of a ruling class, provides employment, and increases the demand for pulp and paper. Which among these count as its functions and which are byproducts? The floodlight example suggests that the functions of something are its standardly in- tended uses. R. M. Hare says that: 'A word is a functional word if, in order to explain its meaning fully, we have to say what the object it refers to is for, or what it is supposed to do'.2 Thus, a floodlight has the function ofilluminat- ing because that is what it is for, although it does give off heat as well as light. The notion of what it is 'for' refers indirectly to the intentions of those who design or use it: the light was built for a purpose. In the case of a 'heatlamp', the relative significance of heat and light are reversed, because of intentions of makers and users. Sociologists sometimes call such in- tended consequences the manifest functions of a social institution.:! Notice that we normally define such functions in terms of standard 0950-8864iU8io20117-08 © 1998 The Cogito Society intended uses, rather than actual or possible uses, because the functions of something are thought to be public and common rather than private and idiosyncratic. The fact that I some- times use a floodlight as a doorstop does not mean that the function of floodlights is to stop doors, though we might say this one is function- ing as a doorstop. Does law have standard intended uses? To some extent. A particular order given by a judge, e.g. that Roe should pay Doe, is certainly intended to bring about an effect. And lawyers and judges also refer to intentions in more impersonal contexts, for example, when they speak of the intention of Parliament, or of a particular statute. Here, intentions are imputed to these institutions and laws according to complex rules of legal usage. We may also extend this to whole branches of law, as when we say that the function of tort law is to compensate the wrongfully injured, or that the function of criminal law is to deter wrongdoing. There are two limits, however, to this kind of intention-based analysis. First, not all law is created intentionally. Not only in common law systems, but also in civil ones, law may be created through the gradual emergence of customs and conventions. This is no more an intended result than is the emergence of gram- mar through daily usage. Second, this analysis cannot apply to the legal system as a whole, that is, to the law as such. The legal system is the collective product of actions and omissions of many people over a long stretch of history, and there are no special social rules for imputing intentions to the legal system in the way that there are legal rules imputing intentions to statutes. In any case, we make many functional claims about law that do not seem to presuppose any intentionalist thesis at all: that law promotes efficiency, or stabilizes the mode of production, for example. Law is thought to do these things whether or not it is meant to, and indeed even whether or not people are even aware that it does. Social scientists often apply functional