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. (shrink)

Hart’s account of law has long been acknowledged to be vulnerable to counterexamples which show that it is over-inclusive, since organisations such as private clubs, trade unions, and the mafia sat...

Some companions journey with us; others await our return home. The Cambridge Companion to Legal Positivism1 is, at 800 pages, one of the latter. It is a companion worth returning to, however, as it...

A review of The Cambridge Companion to Legal Positivism (CUP, 2021).