The Essential Functions of Legal Process - edited.pptx

The Essential Functions
of Legal Process
AlanWatson

The Essential Functions of Legal Process
▪ What is law? – Alan Watson makes a reference to ‘Minos’ – a dialogue
between Socrates and a companion.
▪ Plato’s Minos - https://www.youtube.com/watch?v=Y31mSwFvim8
▪ There are many theories on What is law, its nature and definitions. The
three main approaches –
 Natural Law
 Legal Positivism
 Social Control
All of them contain valuable insights for understanding the law.

Natural Law
▪ Whether a rule is or is not a law depends on its nature as a commandment
of God or on its moral quality. Not on its creation or acceptance by a
particular human society.
▪ Classic idea – as in Plato’s Minos – Law is noble, some city resolutions are
good, some are evil. But law is not evil. So evil resolution of a city is not a
law.
▪ Appeal to an outside standard – Minos – to determine what is or is not law.
The appeal maybe be to religion, right reason and so on depending on the
individual proponent of the theory.

Natural Law
▪ Two main problems for Natural Law – (seen in Minos)
 How can a resolution that is passed in the same way as law and is enforced
the same way as law, and is treated by the State as law, reasonably be
claimed not to be law? Why can one not admit it as a law but bad law?
 To determine whether a resolution is or is not law how can one appeal to
the standard outside the political structure that passed the resolution?
How can one agree on an outside standard to which appeal is made? (no
agreement has been reached – even if one should appeal to divine
revelation – Christianity, agreement on Natural would still not exist. Eg –
within Roman Catholic, St. Augustine stance on Natural Law is different
from that of St. Thomas Aquinas ; stoic philosophers - Thomas Hobbes v.
Grotius.)

Natural Law
▪ Thus, no precise theory of Natural Law existed (even before Minos was
written) – Eg. of Jewish mid wives who hid male newborns contrary to
Paraoh’s command that they should be killed. The midwives feared God and
did not do as the king of Egypt commanded, but saved the children. The
conflict between laws of men and commands of God existed back then and it
was considered as unwise to obey the commands of man.

Legal Positivism
▪ (In contrast to Natural law) Legal Positivism insists that a rule is law precisely
because it is created and accepted as such by a particular human society. The
morality or immorality / divine origin is irrelevant to whether the rule is or is
not a legal rule.
▪ Seminal view – John Austin : Positive law is the command of a sovereign
backed by a sanction.
▪ Drawback –
 Difficult to fit ‘Primitive law’ (law of the underdeveloped pre-literate
societies – as it is difficult to find a person/body who can be regarded as
sovereign) and ‘International law’ (in both - there is nothing that can be
regarded as a regulated sanction).Yet lawyers consider both as a law.

Legal Positivism
▪ Drawback –
 Custom that becomes a law cannot be treated as a command of a political
superior. No one ordered custom – it simply grew up. Therefore, it is very
artificial to emphasize that law is the command of the sovereign.
 Positivist approach reveals nothing (neither intended to reveal) about the
purpose and function of law.

Social Control
▪ Marxists – Law is a means of social control.
▪ All law is class law and is made by economically ruling class, in order to
maintain their interests.
▪ Drawback –
 Many legal rules are socially neutral. Also many legal rules largely results
from inertia, which remains badly out of step with the needs and desires of
both society and its ruling elite.

Conclusion
▪ Although the three theories have long and important history. Law is nothing more or
less the decision of a political community – This appears prominent in Minos. It is
emphasized in Plato’s Laws that - laws are different in various states. The legislator
might seek to have his instructions obeyed by means of sanctions.
▪ In Plato’s Republic – Thrasymachus insists that the interest of the ruling class
determines what is justice in both the moral and the legal sense.
▪ Aristotle declares that law may serve the interests of the ruling class and he considers
that the best legislators are from the middle class.
▪ Natural Law and Legal Positivism – argue different answers to one problem -> the
source of validity of law. Law as a Social Control is concerned not with that but with
the function of law or the source of the content of law.

Nature of Law - Function of law
What is the meaning of the word ‘function’?
▪ There are many approaches to understanding the nature of law.
▪ For any man-made object, to know what it is in its essence -> one
reasonable approach is to consider its function in society.
1. Classical functionists – the function of any recurrent activity denotes
‘the part it plays in the social life – the contribution it makes to maintain
structural continuity. But in this view, the idea of purpose is excluded.
(opposition – this theory does not explain social change)

2. Idea of intended purpose – (also not free from theoretical difficulty) in
discussing what an institution does -> look into what it is intended to do.
(But what people say they intend, may not be what they actually intend and
they may actually intend what is impossible to achieve.) Therefore, in order
to understand the nature of an institution, one must know what it intended
to do -> realistic intention.
(but then, what an institution intended to do, can only be judged by what it
actually does. A circular argument!
What does an institution do? Look at intended purpose -> realistic
intention. What it intends to do can only be judged by what it does.

3. Teleological explanation by Lessnoff – laws which express the tendency
of a system to maintain a so-called goal state, explain operations which help to
maintain that state.
Eg – why do humans shiver and sweat?Teleological explanation – they do so in
order to maintain the normal body temperature of 37C.
“in order to” does not imply purpose – the organism is so constituted that it
does tend to maintain normal body temperature by various mechanisms
including sweating and shivering.
The explanation is not by antecedent, but by its consequence – the goal state.
(cannot be accepted if applied to social institutions – Lessnoff says TE of
phenomena such as sweating and shivering can be explained through non
teleological laws.

▪ Law and legal process – can be formulated in terms of any of the above
approaches. He personally prefers the second approach, as it is impossible to
make sense of social institutions except within the framework of human
purpose (broadly onAristotle view).
▪ He uses the word ‘function’ not only to mean what the institution does, but to
express the idea of what an institution is intended to do and can do.
▪ In an approach to nature of law through its function – Initial answer to the
question “What is law?” would be “Law is what law does”.
▪ But what does law do? A human inst. may have more than one function and all
may be relevant. Yet a particular function is absolutely essential to a human
inst. (that unless it performs it, it would not exist) -> called essential function.

▪ (instead of looking for essential function, Ludwig Wittgenstein says we should
look for “family likenesses” – when comparing many things, there would be an
overlap of similarities -> which is a common function.)
▪ “Function” – what something is intended to do, can do, and eventually does.
▪ But the occasional failure to achieve an essential function does not in Watson’s
view make the essential function less essential. But a constant failure to
achieve an essential function -> cannot be accepted by the system as tolerable.
▪ Eg. – motor car, classification of animals by zoologist
▪ Endeavor – not to identify and list all the functions that law may perform in
society, but to isolate the essential function and see if we can learn anything
about the nature of law.

Functions of Legal Process
▪ To find the essential function of law (what it must do in society), we must see
law in action.
▪ Law in action is most clearly seen in legal process and juristic act.
▪ ‘What is the essential function of legal process?’ must be answered before
answering ‘What is the essential function of law in legal process?’
▪ The point of a legal process is the resolution of a dispute, by means of a
decision. But to find the essential function, we must be more specific.

▪ He lists various possible functions of legal process and with help of examples,
try to show which functions are not necessarily built into every system of law.
▪ If this enquiry is properly conducted, any function not excluded by one or more
examples, will be the essential function.
▪ (any list of functions will not be complete.) Nevertheless an attempt is made to
include all functions that are considered fundamental.
▪ (a wider or deeper search would have revealed examples that would make
untenable the idea that any function was essential.)

Functions of legal process :
1. To resolve the dispute by doing or in order to do justice.
2. To resolve the dispute by establishing the facts and applying the relevant
rules of law to them.
3. To resolve the dispute in the interests of the immediately involved parties.
4. To resolve the dispute in the best economic interests of the society at large.
5. To resolve the dispute in the best economic, social or political interests of the
ruling class.
6. To resolve the dispute with the specific object of inhibiting further
unregulated conflict.

▪ In all these, the process achieves its functions through a decision.
▪ But not all the functions are necessarily mutually exclusive.
▪ Function TWO – diff. from other functions. All others primarily ask with what
end in view, is the dispute resolved? Two – maybe regarded as being more
concerned with the means than the ends and these means might further the
end of other functions.
▪ Function SIX – it could be combined with any of the others. It might be argued
that the essential social function of legal process is precisely function Six
combined with One, Three, Four or Five and that the list of possible essential
functions should therefore be increased. But that arises only if more than one
of the listed functions, including Two or Six survive the search for essential
function. Also note – Six is much more precise than simply saying ‘to resolve
the dispute’.

▪ Examples to demonstrate –
1. Trial by Battle – One andTwo
2. Modern Advocacy in the UK – One,Two andThree
3. British Jury System –Two
4. Absence of Reconciliation Machinery –Three
5. Economic Costs of Modern Litigation – Four
6. Actions against the Monarch, Govt., Ministers and Ex. - Five

▪ By the process of exclusion, only SIX survived. Lets investigate it further.
▪ What meaning can be attributed to SIX?
1. Court’s decision is authoritative. Even if hate is present among parties, the instant
dispute is settled.
2. If the instant dispute was not settled, it would lead to further unresolved disputes
and might erupt violence.
3. The decision sets an example for further disputes. Parties know what the outcome
would be in a similar dispute and the probable losing party may not push the dispute
to the extremes.
4. The decision serves as a warning – deters future criminals. Those who are punished
are restricted and may not engage in further conflict-making behavior in the society.

▪ There will be instances where the process fails to inhibit further unregulated conflict.
Eg – persecution of a group by law, in order to incite the state’s supporters to violence.
But, there are other means available to the govt. if they want to provoke internal
violence. No govt. on the long run would like to have permanent internal unrest. (Its
an abuse of legal process by the govt. – if it continues a series – then the efficacy is
limited, also it reflects a failure built into the system. Further the govt. provokes
violence to ensure future stability – to inhibit further unregulated conflict)
▪ Hence, function SIX can still be considered as essential function of legal process.
▪ Another route through which we could lead to the same conclusion – Progress of
processes to infinity is stopped only if dispute is settled to inhibit future unregulated
conflict.
▪ The existence of EF does not exclude the existence of any other function. The other
functions act on the EF. EF is the society’s prime and necessary stake in the institution.

▪ Function TWO is not EF. The system does not always hide the fact that the
legal rules applied to the facts have very limited significance. Nevertheless its
an important function of the legal process. (people will feel a deep sense of
injury if the recognized practice is not acceptable or observed) When a function
that is not EF is treated as very important, its failure may cause the failure of
EF. (the injury can prevent the process from fulfilling its EF)

The point of legal process is the resolution of a dispute, actual/occasionally
potential, by means of a Decision
▪ There are actual disputes, but sometimes there are potential disputes.
▪ There are two classes of potential disputes –
1) Law makers regard a particular situation as likely to give rise to a dispute and demand
the use of process to declare the legal position of the parties in advance of an actual
dispute. (The State would typically be one of the one disputing parties)
▪ Eg.- Judicial hearings to be held before Trust purposes may be varied (because vary in
the purpose leads to beneficiaries objecting at a future date and a dispute arising)
▪ Eg. (a case intermediate of actual and potential dispute) - in countries that demand
decrees of divorce to be granted only after a court hearing, even when both the
spouses wish to divorce. The dispute is potential –> grievances may arise later from
matters which are not currently contentious – such as division of property, access to
children.

▪ The dispute is actual –> The state insists for whatever reason that divorce not
ought be granted in the absence of particular circumstances and that
marriages cannot simply end at the whim of spouses. Spouses have to
demonstrate that facts required for divorce are/are not present.
2) Potential disputes that may arises where persons find themselves in a situation
that is conducive of bad blood.
▪ Eg. – Heir can demand for division of inheritance among carious heirs.
▪ Action of partnerships – where one partner brings an action against his
associates to compel them to carry out the terms of partnership. This can be
brought to ensure assents are distributed in a regulated fashion among partner
and reducing the possibility of a conflict.

Claim of Law or Legal Right – the function of legal process
▪ EF is not to determine the verdict since as we have seen, it is not the EF to
establish facts and resolve dispute by applying the relevant rules of law to
them. (TWO) .
▪ One EF of law appears at the outset – a claim involving law is absolutely
necessary to initiate legal process. (a claim maybe of a legal right, legal
privilege that should be accorded, or legal power that should be granted.)
Therefore it is a claim (a claim of law), which ‘court’ has authority to decide,
ought to be done or be not done.
▪ Thus, a first EF of law viewed from the process is to get the dispute before the
court, from what maybe a private quarrel into something which society
properly takes notice and over which society exercises its authority to inhibit
further unregulated conflict.

▪ Consequent to this function, once its before the court, the central issue is the
claim of legal right. Forensic expertise may determine the decision in modern
law suit and greater skill may be brought by the wealthier party, but the
expertise is ostensibly dedicated to establishing or proving a claim of right by a
particular technique of establishing facts and law applicable to them.
▪ Although, in individual instances EF may fail, an occasional failure of EF will not
make the rule less law, but will tend to cause the legal rule to undergo change.
▪ Major virtue of legal decision is that, it should be acceptable, not necessarily
that the law be correctly applied to the facts. For Eg. – the jury in Britain,
especially in criminal trials. The jury’s verdict is not always that which seems to
follow from the facts demonstrated and from the relevant legal rules.

▪ It is reasonable to define something in terms of –
▪ Essential characteristics
▪ To think of a human institution in terms of what its does
▪ Tentatively, definition of laws, from the narrow viewpoint of legal process –
“Law is the means adopted to institutionalize dispute situations and to validate
decisions given in the appropriate process which itself has the specific object of
inhibiting further unregulated conflict.”
▪ EF of law means the minimum function of law. So the definition of law based
on EF must be the minimum definition of law. It is worth noting that, rules of
evidence and procedure fit this definition.

▪ At various points, in passing we have noticed that the functions of legal process
is achieved by means of a decision. The decision is an essential feature of legal
process.
▪ A hearing is not a legal process. The court must declare that in this case, you or
he must do ..so and so.
▪ The case of ‘victimless crimes’ may cause difficulties for both, the EF of legal
process and for the idea of law.
▪ Where there is a victim, dispute involves an offender, victim, public and state.
The specific object of inhibiting further unregulated conflicts – not to
encourage criminals to commit further crimes, victims from retaliating, tension
in the community resulting in violence or uncontrollable measures taken by the
state.

▪ When there is no victim, Eg. – homosexual behavior among consulting adults. Can the
process said to inhibit further unregulated conflicts?
▪ There can be two situations –
1. When the act i.e, behavior is considered to be disgusting, dangerous by people in
the society, there would be tension, and the process to stop such a behavior may
serve to inhibit unregulated conflict.
2. When the behavior is socially acceptable, then it would not lead to unregulated
conflict. The behavior is merely criminal because at an earlier period it was thought
as dangerous, but now the attitude of the people have changed without the law
itself undergoing alteration. Should a prosecution be brought, it cannot be said that
the trial inhibits unregulated conflict
▪ Failure of law or the legal process is fundamental here. There is no real dispute. The law is
bad and liable to be changed. The defect is primarily of law and secondarily of the legal
process. Therefore, bad law can cause failure of EF, by promoting unregulated conflict
from the decision.This is an occasional failure of EF built into the system.

Juristic Act -
▪ Law in action is also seen in juristic acts.
▪ Juristic act – making a testament or entering into a contract – a voluntary
manifestation of will – human will is given legal effectiveness.
▪ The term does not include acts where law binds someone against their will. Eg. –
general duty to not defame others, negligent damage to others property.
▪ A social act may exist independently of juristic act. i.e., a voluntary manifestation
of human will may exist without the will being given legal effectiveness. Eg. – a
barter exchange (even before contract was introduced/applied).
▪ What is the function of marriage? Depends on if you are looking at it as a social
institution or legal institution.

▪ Juristic act is nothing more than a social act being given legal effectiveness, which
is contemplated from a legal angle.
▪ The function of legal effectiveness is to bolster the social act, by providing means
for resolution of a possible dispute.
▪ The EF of juristic act - is to bolster the social act, by providing means for resolution
of a possible dispute with a specific object of avoiding further unregulated conflict.
▪ - is to bolster the social act, by providing means for avoidance
or resolution of a possible dispute with a specific object of avoiding further
unregulated conflict. Not a persuasive analysis. For eg. – EF of marriage as a juristic
act is to avoid possible matrimonial disputes. Yes, the extremely important
function is to avoid conflict. But that is achieved by providing resolution of any
possible dispute.

The Essential Functions of Legal Process - edited.pptx

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