THE FUNCTIONALIST VIEW

The functionalist view of lawmaking, as formulated by Paul Bohannan (1973), is concerned mainly with how laws emerge. Bohannan argued that laws are a special kind of ‚Äúreinstitutionalized custom.‚ÄĚ Customs are norms or rules about the ways in which people must behave if social institutions are to perform their functions and society is to endure. Lawmaking is the restatement of some customs (for example, those dealing with economic transactions and contractual relations, property rights in marriage, or deviant behavior) so that legal institutions can enforce them.

This functionalist view suggests that failure in other institutional norms encourages the reinstitutionalization of the norms by the legal institution. From the functionalist perspective, laws are passed because they represent the voice of the people. Laws are essentially a crystallization of custom, of the existing normative order. Although there are conflicts in society, they are relatively marginal, and they do not involve basic values. In this view, conflict and competition between groups in a society actually serve to contribute to its cohesion and solidarity.

 
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