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The Functions and Dynamics of Law in Social Organization, Study notes of Introduction to E-Business

The key functions of law in a social system, including social control and organization, conflict resolution, and legitimization of social power. It delves into the debate around whether law should merely reflect existing social changes or actively drive social change through legislation. The document also discusses the challenges in adapting law to rapidly evolving social and technological transformations, as well as the influence of political agendas on legal reforms. With a comprehensive analysis of law's role in shaping and responding to social dynamics, this document provides valuable insights for understanding the complex interplay between law and society.

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The Multifaceted Functions of Law
in Social Organization
Law as a Form of Social Organization
1. The Functions of Law
A functional analysis of law allows us to examine its role within a social
system. This approach, along with structural analysis, gained prominence in
the 1970s due to the emergence of the "social welfare state," which
triggered changes in the legal system that could be explained by a new
function: the distributive and promotional function.
The main functions of law are:
Social Control and Social Organization: a. Protective/Repressive
Techniques: Law imposes positive duties (obligations) and negative
duties (prohibitions) under the threat of negative sanctions
(punishment). This is primarily developed through criminal law. b.
Organizational, Directive, Regulative, and Public Control Techniques:
Law organizes social and economic structures, granting powers and
competences to public authorities for regulation and control of private
activities. c. Promotional or Encouragement Techniques: Law attempts
to persuade individuals or groups to engage in "socially desirable"
behaviors through positive sanctions, such as financial incentives.
Conflict Resolution/Conflict Treatment:
Many scholars consider "conflict resolution" as the primary function of
law, which is not surprising given the configuration of Anglo-Saxon
legal systems focused on justice in individual cases.
However, it is more accurate to refer to the "treatment of declared
conflicts," as the legal system does not merely settle or solve conflicts,
but rather turns them into legal ones to keep them under control.
The "treatment" of a conflict begins with the legislative and executive
phases, where laws provide social agents with legal elements on how to
act and avoid or resolve conflicts. Only when this "treatment" fails do
social agents turn to the courts.
Legitimization of Social Power:
Law has always served as an instrument to obtain legitimacy,
acceptance, and consensus for political decisions.
Law legitimizes the actions of public authorities by defining their
competences, procedures, and limits.
Law also legitimizes the actions of private individuals, who may use
legal rules and behaviors as justification for their actions.
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The Multifaceted Functions of Law

in Social Organization

Law as a Form of Social Organization

1. The Functions of Law

A functional analysis of law allows us to examine its role within a social system. This approach, along with structural analysis, gained prominence in the 1970s due to the emergence of the "social welfare state," which triggered changes in the legal system that could be explained by a new function: the distributive and promotional function.

The main functions of law are:

Social Control and Social Organization : a. Protective/Repressive Techniques: Law imposes positive duties (obligations) and negative duties (prohibitions) under the threat of negative sanctions (punishment). This is primarily developed through criminal law. b. Organizational, Directive, Regulative, and Public Control Techniques: Law organizes social and economic structures, granting powers and competences to public authorities for regulation and control of private activities. c. Promotional or Encouragement Techniques: Law attempts to persuade individuals or groups to engage in "socially desirable" behaviors through positive sanctions, such as financial incentives.

Conflict Resolution/Conflict Treatment :

Many scholars consider "conflict resolution" as the primary function of law, which is not surprising given the configuration of Anglo-Saxon legal systems focused on justice in individual cases. However, it is more accurate to refer to the "treatment of declared conflicts," as the legal system does not merely settle or solve conflicts, but rather turns them into legal ones to keep them under control.

The "treatment" of a conflict begins with the legislative and executive phases, where laws provide social agents with legal elements on how to act and avoid or resolve conflicts. Only when this "treatment" fails do social agents turn to the courts.

Legitimization of Social Power :

Law has always served as an instrument to obtain legitimacy, acceptance, and consensus for political decisions. Law legitimizes the actions of public authorities by defining their competences, procedures, and limits. Law also legitimizes the actions of private individuals, who may use legal rules and behaviors as justification for their actions.

2. Relation between Law and Social Change

This topic explores the effects of legal norms and rules on society, as well as the impact of social changes on law.

Law as an Instrument of Social Change (Von Savigny)

There are two main positions on this topic:

Certain writers argue that law should merely gather social changes that have already taken place, being neutral and pro-abstentionist. They often belonged to the historical school of law and other schools that led the "revolt against formalism," considering law as an outcome of the "volksgeist" (the spirit of the people) and not to be used by political power to change traditions and customs.

Different writers defend the idea that law is an instrument of social change. These theories view legislation as a means of introducing changes in the social system, as law is composed of norms and rules created by public powers to secure obedience through sanctions.

The concept of law as an instrument for social change has gained favor in recent years, but it also encounters some limits: - Factual limit: the difficulty in changing certain deeply rooted societal habits. - Ethical limit: the risks to the principle of individual autonomy posed by unjustified paternalistic or perfectionist legislation.

Social Change and the Transformation of Law

Social changes are constant, and it is important to study how these changes are reflected in law and the factors that hinder or impede the necessary legal transformation to adapt to these changes. Sometimes, technological or social changes occur at a faster pace than the necessary legal changes due to bureaucracy, while other times, political agendas can delay the legal changes that society desires.