Legal Systems as Abstract Institutional Artifacts

Abstract

This chapter claims that legal systems are abstract institutional artifacts and that as such they existentially or ontologically depend on collective intentionality in the form of (a we-mode) collective recognition. It argues that this recognition, as a social practice accompanied with its participants’ particular attitude toward it, constitutes a social norm by which a group of people collectively imposes an institutional status of officials or make it the case that an institutional status of legal system exists. It further claims that legal systems often emerge gradually from standing rudimentary pre-legal practices which may be said to create the context in which social norms of recognition can emerge. Finally, it argues that the actual existence of a legal system depends on whether or not the content of collective recognition was largely successfully realized, which is manifested precisely in people actually using a legal system, i.e., in their social (legal) practices.

Flaws and Virtues ofAn Artifact Theory of Law

“…I shall start my argument with some insights from Burazin . Here, Burazin seems to accept that C is true.…”

“…In other words, what does it take for collective recognition to provide reasons to act? Burazin (, 120) assumes that collective recognition gives participants reasons to act, yet he does not say how and why this is so.…”

“…Once there are legal officials, their corresponding practice of identifying, creating, applying, and modifying rules constitutes the ontological foundation of legal systems (see Burazin , 121). This practice is equally based on both their collective recognition of the legal system and their collective acting according to it.…”

“…Burazin (, 124) seems to be aware of this. Moreover, as he is using Tuomela’s theory of social practices to explain how collective recognition is preceded by and emerges from social practices, he claims that “legal systems often emerge from a standing practice since collective recognition is often preceded by and emerges from some existing rudimentary pre‐legal practices [...]” (ibid., 134).…”

“…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 (2015;2018) considers another option, and suggests a novel explanation of the nature of law, which he calls an artifact theory of law. 1 The main objective of this paper is to evaluate this suggestion.…”