The context

The textbook that accompanies this website discussed, in some detail, the different functions that law can perform in society. These included the following:

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• Preservation of Public order

• Reflecting and influencing values of a society

• Regulating the powers of institutions of the state

• Protection of individual freedoms

• Regulating relationships

• Resolving disputes

 

These functions are sometimes (perhaps even mostly), compatible. For example, by regulating state power it is often the case that individual freedoms are better protected. Equally, by regulating relationships the law can provide a framework by which disputes are to be resolved. The conceptually more difficult situation is where those functions of law collide or are in conflict.

 

As you read

This resource is not intended to give you any answers but rather to get you thinking about the questions! The study of law is full of detailed content and the application of skills (whether these are general skills, analytic or ‘thinking’ skills or specific legal skills). Few skills are more important than the ability to think critically about the law. It is one thing to know and to be able to recite the law and quite another to be able to speak critically about it.

 

The issue

As mentioned above, often functions of the law come into conflict. This is where the law is trying to pursue multiple different objectives. Sometimes this conflict is unintentional (where Parliament or the courts do not put thought to potential conflict) and sometimes intentional (where there is an express recognition that compromise between functions is necessary).

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Thinking point: Before reading any further, take a few moments to see if you can think of any examples of these types of conflict between the purposes above? Why might the law specifically need to broker a compromise between these functions?

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What follows is a brief outline of some issues for you to consider. Namely:

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• When functions collide

• When are in tension

• When influences the of another function

 

 

When functions collide

Perhaps the most significant example of functions of law ‘colliding’ can be find in the realms of the law governing human rights and fundamental freedoms. The law concerning human rights in England and Wales is governed by a mixture of common law (that law made by judges) and by legislation. The most significant piece of legislation in this area is the Human Rights Act 1998, which incorporates the rights of the European Convention on Human Rights, to which the UK has been a signatory since its inception. The Convention Rights and the Human Rights Act 1998 seeks to protect those rights, thereby fulfilling the purpose of ‘protecting individual freedoms’.

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The rights incorporated by the Human Rights Act 1998 include absolute rights (with which there can be no interference) such as the right to life and the right not to be subjected to inhuman or degrading treatment or punishment. Here, there can be no intentional ‘conflict’ with other functions of law. It is not open to the state to torture individuals in order to preserve public order.

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However, there are some rights that are qualified and are therefore not absolute. These include the right to respect for private and family life, the freedom of expression, the freedom of assembly and association. The fact that they are qualified demonstrates that the law may be trying to achieve conflicting functions.

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Thinking point: before reading on, consider why you think that it may be necessary to limit the rights of individuals in certain circumstances.

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If we take the example of the freedom of assembly then it can easily be seen that there are times when public gatherings need to be regulated. This could be to ensure that public order is preserved at times of civil unrest or national emergency. Here the law has competing objectives and must decide on an appropriate balance between those interests.

 

Resolving internal conflicts within a particular function

Or, sometimes there is a conflict within a particular function of law. And so, sticking with the protection of individual freedoms, it can be that the freedom of expression can come into conflict with the right to privacy. In Campbell v MGN the House of Lords had to consider the competing interests in a newspaper publishing details of a celebrity leaving a drugs rehabilitation facility. The law is there not just to achieve a particular function but also to resolve tensions within that function and between that function and other functions.

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Thinking point: what sorts of consideration may need to be taken into account in achieving a good balance? How would the courts go about assessing those considerations? Explore the case of Campbell discussed above to see how the court resolves that particular tension.

 

When one function helps to define another

To take a final example, we know that one function of law is to reflect the values of society. This means that the definition (sometimes called scope) of particular functions are limited because they are viewed through the ‘lens’ of another. That is all rather complicated but an example might help!

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Section 10 of the Equality Act 2010 protects the right to hold a particular philosophical belief. This is again an example of law having the function of protecting individual freedoms. However, what amounts to a philosophical belief is limited to those things that are ‘worthy of respect in a democratic society’. This means that the one function of law (protecting freedoms) is interpreted by reference to another function of law (reflecting the values of society).

 

Concluding thoughts

What I hope that this short discussion has done is to prompt you to start thinking about functions of law in a more holistic way. It is easy to learn the functions and to give examples. It is much more difficult (but also more rewarding and more useful) to consider how these functions interact in the delicate ecosystem of the legal system of England & Wales. By thinking more critically about these things we gain a better understanding of not only the constituent parts but also how they hang together.