ABSTRACT
Parsons and structural-functionalism 42 The problem of order 43 The social system 44 Parsons on the legal profession 45 The relationship between law and other sub-systems 46
A darker version: autopoesis theory 49 Luhmann as a systems theorist 51 An evolutionary view 51 Law as an autopoetic system 52
Institutionalism 54 Old and new institutionalisms 55 Organisations and their legal environment 57
The consensus tradition and method 59 Measuring the effectiveness of law 59 The normative/positivist debate 60
Assessing systems theory 60 The charge of conservatism 60 An idealised view of law? 61
Questions 62
Further reading 63
Boxes 3.1 Lawyers and social control 47 3.2 The effectiveness of law 50 3.3 The relationship between law and politics 54
The consensus tradition is a general term for a large number of traditions that have been, and remain, influential across the human sciences. The central assumption is that society can be understood as a biological organism, or in some versions a cybernetic entity, held together by shared values. Each social institution has a purpose or function in maintaining social order and in transmitting and maintaining the shared values. Nineteenth-century theorists in sociology include Comte, who also wrote about biology as a new science, and Durkheim, who each developed the view that society had a separate existence and evolved more or less harmoniously from simple beginnings into a complex organism over time. In anthropology, Malinowski saw primitive societies in similar terms with institutions such as the family and legal system maintaining traditional customs and values. In sociological jurisprudence, both Pound and Llewellyn understood law in terms of its functions for society as a whole. Pound saw the main function of law as social control, although this was broadly conceived in terms of transmitting values and providing a framework for resolving disputes, and not just as a means of punishing deviance. Llewellyn, although criticised by Pound (1931) for just focusing on judicial work rather than on the historical evolution of society as a whole, was also a functionalist. He identified ‘law jobs’ that a society required to be performed for it to operate effectively (Llewellyn and Hoebel 1941).
