Text Discussion Cohen and Frank

Cohen: Legal Functionalism and Religion

I found Cohen’s comparison of religion and law rather interesting (CB 58-62). To better understand how functionalism will influence the law, he considers how functionalism has influenced the study of religion, writing, “Applied to the study of religion, for instance, the functional approach has meant a shift of emphasis away from the attempt to systematize and compare religious beliefs, away from concern with the genesis and evolution of religions, and towards a study of consequences of various religious beliefs in terms of human motivation and social structure…The functional approach asks of every religious dogma or ritual: How does it work? How does it serve to mould men’s lives, to deter from certain avenues of conduct and expression, to sanction accepted patterns of behavior, to produce or alleviate certain emotional stresses, to induce social solidarity, to lay a basis for culture accumulation by giving life after death to the visions, thought and achievements of mortal men.” This approach focuses not on the reasons behind, and the differences between various religious beliefs, but instead focuses on the social consequences and significance of those beliefs.

Cohen uses language to draw a parallel between religion and the Restatement of the Law a few pages later. He describes the Restatement as a “dogma of legal theory.” Like the functionalist studying religion, searching past the dogmas and rituals to understand how the beliefs mould true human conduct, the functional jurist must search past the “dogmas of legal theory”; Cohen’s correct legal thought “will more and more look behind the traditionally accepted principles of ‘justice’ and ‘reason’ to appraise in ethical terms the social values at stake in any choice between precedents.” By comparing law to religion Cohen makes it clear that a legal code detached from real life is little better than a religious code. Functionalists will not merely restate and blindly follow past laws, but will consider the real world consequences of those laws and decisions, and their social significance. Studying law only by studying the code is little better than studying religion only by studying the code. A more useful approach in both fields is studying the social consequences of the beliefs and how those beliefs can be or are shaped by social policy. -- GideonHart - 31 Jan 2008