Defending the Possibility of a Neutral Functional Theory of Law

Unlocking Legal Validity: Some Remarks on the Artificial Ontology of Law

“…45 That presumptions only stands until a norm is scrutinized by a court as the court will not enforce invalid norms, only valid ones. 46 But it appears as an undeniable descriptive truth about our legal practices that, until an invalid act is brought before a relevant Force of law and enforceability 43 On the institutionality of law the locus classicus is MacCormick (2008); for a very recent take see Ehrenberg (2016). 44 A notable exception is Ferrajoli (2007, p. 528).…”

Can There Be an Artifact Theory of Law?

“…Such an approach may be fruitful for making our structural explanations of law more intelligible. Finally, MacCormick and Ehrenberg make use of the "law is an artifact" claim to advocate the functional analysis of law since, in the case of artifacts, functions seem to play an important role (MacCormick 2007, 305;Ehrenberg 2009). If an artifact theory of law were indeed to reveal that functions are essential in regarding something as law, this would undoubtedly benefit our views on the appropriate methodology in legal philosophy.…”

Functions in Jurisprudential Methodology

“…We can see this two‐fold possibility of failure as instructive for one aspect of functional explanations of law. Since functional explanations hold that law is a means to accomplish a certain social goal, laws and legal systems can be criticized either for failing to achieve the goal, or for having a goal that is actually a disvalue (Ehrenberg 2009, 94–96, arguing it is not incumbent upon an explanatory theorist to engage with either critique) 12 . For Finnis, since the goal is the common good, law is necessarily a thing of value given that we cannot dispute the value of that goal.…”