Функционална анализа права
The Functional Analysis of Law

Author(s): Anja Bezbradica
Subject(s): Law, Constitution, Jurisprudence, Sociology of Law
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: The functional analysis of law; Functions of law; Purpose of law; Latent and manifest functions of law;
Summary/Abstract: The paper analyzes the jurisprudential literature regarding the functional analysis of law and postulates that there has not been significant research on the functions of law in jurisprudence. Starting from Merton's (Robert K. Merton) distinction between latent and manifest functions, we hypothesize that one of the reasons for the illusion of the ubiquity of the functional analysis of law in the legal literature is the conceptual identification of the terms goal (purpose, aim) and function in jurisprudence. In addition, due to the dominance of normative theories of law, even among authors who clearly separate the goal of law and its functions, dealing with the latter happens incidentally and on a high theoretical level. On the contrary, this paper intends to position the functional analysis of law where naturally belongs - in the field of empirical sociology, leaving the issue of law purposes to the philosophy of law. Additionally, like in Merton's theory, the author points to the need to provide ideological neutrality to the functional analysis, which could be achieved by rejecting the principles of classical functionalism. This means accepting that law does not always perform positive functions in society, that it can be functional for one unit of society and dysfunctional for another, and accepting the possibility for it to have functional alternatives. The analysis aims to provide a conceptual-methodological framework for future research on the functions of law.

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