DYSFUNCTIONS OF LAW
Although law is an essential institution of social life, it possesses, like most institutions, certain dysfunctions that may evolve into serious operational difficulties if they are not seriously considered (Clark, 2007). These dysfunctions stem in part from the law’s conservative tendencies, the rigidity inherent in its formal structure, the restrictive aspects connected with its control functions, and the fact that certain kinds of discriminations are inherent in the law itself.
The eminent social scientist Hans Morgenthau (1993:418) suggests that “a given status quo is stabilized and perpetuated in a legal system” and that the courts, being the chief instruments of a legal system, “must act as agents of the status quo.” By establishing a social policy of a particular time and place in constitutional and statutory precepts, or by making the precedents of the past binding, the law exhibits a tendency toward conservatism.
Related to these conservative tendencies of the law is a type of rigidity inherent in its normative framework. Because legal rules are couched in general, abstract, and universal terms, they sometimes operate as straitjackets in particular situations. An illustration of this is the failure of law to consider certain extenuating circumstances for a particular illegal act; for example, stealing because one is hungry or stealing for profit. This “straitjacketing” is a second dysfunction of law.
A third dysfunction stems from the restrictive aspects of normative control. Norms are shared convictions about the patterns of behavior that are appropriate or inappropriate for the members of a group. Norms serve to combat and forestall anomie (a state of normlessness) and social disorganization. Law can overstep its bounds, and regulation can turn into overregulation, in which situation control may become transformed into repression. For example, in nineteenth-century America, public administration was sometimes hampered by an over-restrictive use of the law, which tended to paralyze needed discretionary exercises in governmental power (Pound, 1914).
Donald Black’s (1989) contention that certain kinds of discrimination are inherent in law itself can be construed as a fourth dysfunction. Rules, in principle, may apply to everyone, but legal authority falls unevenly across social place. Yes, everyone accused of a crime is entitled to a lawyer, but the rich can afford far better legal representation than the poor. In other respects, the law may be biased against the poor, people of color, and other groups (Gabbidon and Greene, 2016). The fourth dysfunction of law, in short, concerns social inequality.
Undoubtedly, the list of dysfunctions of law is incomplete. We could also include a variety of procedural inefficiencies, administrative delays, and archaic legal terminologies. At times, justice is denied and innocent people are convicted (Zalman et al., 2008). One can also talk about laws being out-of-date, inequitable criminal sentencing, lack of clarity of some laws resulting in loopholes and diverse interpretations, and the dominating use of law by one class against another.