Defending a Functional Kinds Account of Law

Australian Journal of Legal Philosophy (2017) 42, 121-144

21 Pages Posted: 6 Sep 2019

See all articles by Jan Mihal

Jan Mihal

NUS, Faculty of Law; Melbourne Law School

Date Written: 2016

Abstract

In this paper, I defend the possibility that law is a functional kind by replying to objections from Leslie Green and Brian Tamanaha. I also show how Kenneth Ehrenberg’s approach to law’s functions in his latest book concedes too much to these objections. A functional kinds approach to law is possible and, for someone interested in showing the importance of law’s functions, preferable. I first explore Tamanaha’s objection and show that the possibility of functional equivalents does not pose a problem for a functional kinds account of law. I then respond to Green by showing that law is more distinctively identified by its function than by the means by which it achieves this function. I quickly explore a lesser objection dealing with how law can pursue a variety of ends while having the same function the whole while. I then turn to an issue Ehrenberg raises regarding thinking of the law as having a plurality of functions like a Swiss Army knife. Finally, I show that Ehrenberg’s approach to the relationship between law and its functions is unnecessarily weak, as it avoids holding that law's nature or essence is its proper function for similar reasons to Green and Tamanaha.

Keywords: General Jurisprudence, Philosophy of Law, Nature of Law, Metaphysics

Suggested Citation

Mihal, Jan, Defending a Functional Kinds Account of Law (2016). Australian Journal of Legal Philosophy (2017) 42, 121-144. Available at SSRN: https://ssrn.com/abstract=3445297 or http://dx.doi.org/10.2139/ssrn.3445297

Jan Mihal (Contact Author)

NUS, Faculty of Law ( email )

469G Bukit Timah Road
Eu Tong Sen Building
Singapore, 259776
Singapore

HOME PAGE: http://https://law.nus.edu.sg/about_us/faculty/staff/profileview.asp?UserID=lawjm

Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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