Can There Be an Artifact Theory of Law?

Abstract

The idea that particular legal institutions are artifacts is not new. However, the idea that the “law” or “legal system” is itself an artifact has seldom been directly put forward, due perhaps to the ambiguities surrounding philosophical inquiries into law. Nevertheless, such an idea has recently been invoked more often, though not always developed in detail in terms of what the characterization of the “law” or “legal system” as an artifact entails ontologically, and what consequences, if any, this has for philosophical accounts of law. As a result, the primary aim of this paper is to attempt an inquiry into what the claim that “law” by its nature or character is an artifact entails, and what an artifact theory of law might look like.

Flaws and Virtues ofAn Artifact Theory of Law

“…For instance, MacCormick conceptualises the nature of law as an institutional normative order, Marmor as a constitutive convention, and Shapiro as a planning activity based on joint intentions. Burazin (; ; ) considers another option, and suggests a novel explanation of the nature of law, which he calls an artifact theory of law .…”

“…However, to be fair, an important constraint must be considered. Burazin (, 386) states that, in developing his artifact theory of law, he understands law as legal system . He develops this understanding even more clearly in Burazin .…”

“…They are artifacts since they are created by authors who have a particular intention to create the institutional artifact “legal system,” based on the author’s substantive and substantively correct concept of what the legal system is, under the condition that this intention be largely successfully realized. (Burazin , 397)…”

“…The main elements of Burazin’s (, 388–97) characterisation of institutional artifacts are the following: Kinds . Burazin (, 386) distinguishes between natural and human kinds .…”

“…The main elements of Burazin’s (, 388–97) characterisation of institutional artifacts are the following: Kinds . Burazin (, 386) distinguishes between natural and human kinds . Natural kinds, he says, are “groups of objects (things, entities) naturally brought into existence, the grouping (sorting, ordering) of which does not depend on humans, but on their natural common properties.” Human kinds, on the other hand, are groups of objects whose existence (and grouping) depends on human intervention.…”