Law Reform, Law‐Jobs, and Law Commission No. 160
| Date | 01 July 1988 |
| Published date | 01 July 1988 |
| DOI | http://doi.org/10.1111/j.1468-2230.1988.tb01768.x |
REPORTS
LAW
REFORM,
LAW-JOBS,
AND
LAW
COMMISSION
No.
160
ACCORDING
to Karl Llewellyn, no group can survive and flourish as
a group unless the law-jobs are properly performed. Llewellyn
summed up the function of law-jobs as effecting such arrangement
and adjustment of people’s behaviour that a society remains a
society and gets enough energy unleashed and co-ordinated to
keep on with its job as a society.’ Crucially, authority must be
established, goals set, conduct regulated, and disputes resolved.
Although the theory is vague, open to interpretation, and arguably
tautologous, it is a rough but useful tool for functional analysis,’
and it is undoubtedly capable of generating some important
insight^.^
It prompts the following question about the function
of
statutes dealing with private law: are such statutes intended to
provide a framework for dispute-resolution or is their function to
regulate conduct, by deterring, encouraging, or simply guiding
behaviour (like a recipe as it were)?4 Alternatively, are such
statutes intended to function both as practical regulatory schemes
and as frameworks for dispute-settlement? Perhaps, it is possible
for such statutes to perform more than one law-job.
We will argue that, when approached in this way, an interesting
light is shed on the Law Commission’s most recent proposals for
reforming the law of sale and supply of goods.s Our contention is
that the Commission appears
to
see the quality provisions of the
Sale of Goods Act less in terms
of
practical regulation and more as
a
matter of creating an open-ended, flexible legal framework for
dispute-settlement. This, we would suggest, is wholly consistent
with the Commission’s general approach to the function of the law
of
contract.
’
See Llewellyn, “The Nonnative, the Legal and the Law-Jobs: The Problem of
Juristic Method (1940) 49
Yule Law Journal
1355 at p.1373. Perhaps the best distillation
of Llewellyn’s various formulations of the law-jobs theory is to be found in Twining,
Karl
Llewellyn and the Realist Movement
(1973) where (at p.175) the following
six
jobs are
identified: (i) adjustment of the trouble case; (ii) preventive channelling of conduct and
expectations; (iii) preventive re-channelling of conduct and expectations to adjust to
change; (iv) arranging for the say and the manner of its saying (allocation of authority
and procedures
for
authoritative decision-making); (v) provision
of
direction and incentive
within the group (the job
of
providing Net Positive Drive); and (vi) the job of Juristic
Method.
*
See Twining,
op.
cit.
pp.181-182.
For
an
instructive application
of
law-jobs theory to Public Law questions, see Lewis,
“Towards a Sociology of Lawyering in Public Administration” (1981) 32
Northern Ireland
Legal Quarterly
89; and “Public Law and Legal Theory”, in Twining (ed.),
Legal Theory
and Common Law
(1986) p.99.
Following Hart, there is perhaps a tendency to equate the law of contract with
power-conferring
or
facilitative rules. This, however, is altogether too simplistic, see,
e.g.
MacCormick, “Law as Institutional Fact” (1974) 90 L.Q.R. 102.
*
Sale and Supply
of
Goods
(Law Com. No. 160; Scot Law Com. No. 104), Cm. 137,
May 1987.
48
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