Enforceable laws?

I don't know whether this podcast will be of the remotest interest to the people who attend to this blog (all three of you), but I created it as a supplemental guide for students on the Legal Ethics module for the Ethics degree at the University I teach in. It's a consideration of what the function of law is - part of the module explores functionalist issues in this regards, and I appreciate this podcast might be a bit disjointed for anyone who doesn't have that background context. However, the lightning quick gloss is that - in most legal systems both modern and ancient - the law is punitive. An act is outlawed by the legislature (Parliament in our case) and a punishment dreamed up for it to discourage people from engaging in the criminalised activity. That's not the only function of law, but most theorists would argue it is the central one.
I've been following some of the arguments made by people around banning parents smacking their children (laws are already in place against beating children, these recent moves are against milder chastisements as well). I am happily childless and have scant interest in the rights and wrongs of child-rearing techniques, so I am not about to earn the wrath of Mumsnet by taking a stance on that one. What interests me is that most of the people I have seen arguing in favour of this ban do not want courts to send such parents to prison - in effect saying that they want a law to exist but do not really want it implemented to criminalise people who break it. Which returns us to the issue of what function the law is now starting to serve - if not to penalise wrongdoing then is it to wag a finger of paternalist disapproval towards morally debatable acts, or to re-educate people into not breaking the law again (as it has already started to do, with insistence that some legal infringements require people to be taught not to do it again)?
I may re-record this as it is a bit too rambling and some of the issues would benefit from deeper explanation, but it might be of mild interest to some people as it is.


  1. Hi. You describe modern (and ancient) law as punitive. I think this is a mistake. You reference functionalist models of the roe of law in society but I feel over simplify this position. Parsons states that modern law is first and foremost a system of norms; that is to say, a set of prescriptions, permissions, and prohibitions bearing on social action. But in order to be efficacious, these legal norms must ultimately be grounded in values. And because values and moral premises operate in and through the fiduciary system, it is this component of society that in the last instance gives the legal system its legitimation. But what are those aspects of the fiduciary system that legitimize law, that make it morally binding, and as such, compel citizens to conform? It is not, therefore, that we are forced by the law to conform with the threat of punitive action. Rather that the law operates as part of the AGIL system to reflect norms. Prior to the advent of modernity (broadly understood as occurring during the seventeenth century) Western law, as a collective phenomenon, was legitimated through common value commitments, such as universalism. What defines modern conceptions of law, based on ancient Ines is the idea that the law embodies RIGHTS as well as obligations. We are obliged to follow the law npbut do so not because if the threat if punitive action but because the law also bestows rights. A child has a right not the be beaten. This is primary. The law expresses this as a restriction on the freedom to beat. Your mistake, I think, is to see the proscription on the right to beat as the central theme of the law when in fact it is the right not the be beaten.

  2. So, having read my comment I realise that I haven't adresses Robin's key point: what happens to the smacker? I think that the action of the State is not the point of the law. The law states a moral position that represents a set of complex values. The law flows from society. The existence of the law, and the debate around the efficacy of the law is the pont; not what happens in the application of the law. Again, Parsons would say this is not a universal. Some laws diminish in their reflection of social values if they are never acted on: corporate manslaughter for example. This is not the case for slapping. There is a strong desire to see bankers who fucked us all in 2008 put in prison; we want marital rape laws to result in actual prosecutions; sexual harassment laws should see people prosecuted. But smacking is about the reflection of moral values which are ambiguous. The law should not take an absolutist line on social issues which are in flux. When they do (dangerous dogs acts) they result in bad and unworkable laws. What's making debates is reflect complex social values. The lack of an absolutist legal stance is a good thing.


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