On the Artifactual—and Natural— Character of Legal Institutions

Ratio Juris, 1991

Law as an Artifact, ed. by L. Burazin, K. E. Himma and C. Roversi, Oxford UP (2018)

The paper argues that a (structured) legal system is an abstract institutional artefact. A legal system is an artefact insofar as its existence in a society is grounded in social practices among officials and citizens. Officials bring the system of law into existence by practicing a social norm of recognition and can hence, in some sense, be thought of as the 'authors' of the legal system acting on some overlapping set of intentional states that include bringing a system of 'law' into existence, rather than some other system of rules. By being institutional by nature, it differs from ‘ordinary’ artefacts (such as chairs, hammers or clocks) in that it is norm-based and requires general ('collective') recognition (acceptance). This means that it can initially be created only if there is general recognition of the relevant constitutive norms and can continue to exist only for as long as this recognition is maintained. Finally, it is abstract in the sense that it is not created by imposing the status function ‘legal system’ to any existing physical object or person but by making it the case that it exists provided certain conditions are fulfilled.

Jurisprudence, 2019

One of the main questions raised by Ken Ehrenberg's book The Functions of Law (OUP, 2016) is how to remain a legal positivist and still adhere to the view that law should best be understood in terms of its ends or functions. Ehrenberg illuminatingly provides answers to both sides of the question by exposing his ontological understanding of law, claiming that law is best understood as a genre or kind of institutionalised abstract artifact. While I in general agree with Ehrenberg's analysis of the artifactual and institutional character of law and share a great many ideas he elaborated in the book, I still have some doubts and reservations regarding some of the particulars of his theoretical position. For the purpose of this comment, I will limit myself to three points. The first regards Ehrenberg's identification of the object of inquiry and the possibility of making ontological inferences from individual laws to law as a type (genre or kind). The second concerns his explanation of the artifactual character of customary laws and his general view on the form and degree of intentionality required for the artifact to be brought into existence. The third refers to the methodology he advocates for getting to the general notion of laws' functions and his characterization of law's function stemming from law's artifactual and institutional character.

Philosophy and Phenomenological Research, 2020

The most influential theory of law in current analytic legal philosophy is legal positivism, which generally understands law to be a kind of institution. The most influential theory of institutions in current analytic social philosophy is that of John Searle. One would hope that the two theories are compatible, and in many ways they certainly are. But one incompatibility that still needs ironing out involves the relation of the social rule that undergirds the validity of any legal system (H.L.A. Hart's rule of recognition) to Searle's notion of codification: the idea that institutions need official declarations of their constitutive rules in order to enjoy the full benefits of institutions. The incompatibility arises from the fact that, in order to do its institutional work, the basic validity rule must be codified in Searle's sense—yet, given the particular role it has in legal positivism, it may be impossible to codify in the Searlean sense. In this paper I develop the incompatibility in detail, consider and reject consigning the basic validity rule to Searle's “Background” capacities that support institutional facts, and conclude that the best route to eliminating it while doing a minimum of damage to the two theories is to make a slight emendation to Searle's theory of institutions.

Legal institutions, legal systems, law in general are human artefacts. This is an idea that can be seen as an assumption of both legal positivism and legal realism. But, apart from these obvious connections, a possible question is whether the fact that law is an artefact completely rules out its connection with the natural background: Is there a sense in which we can consider legal institutions to be natural, other than artefactual? After all, this was the original intuition of the most ancient among the legal-philosophical conceptions, namely, natural law theory. Is it possible that the way in which legal artefacts are built and conceptualized is connected with the way in which natural and physical phenomena are conceptualized? Is there a connection between law and conceptions of nature? In this paper, we present an experiment conceived and realized to test some conjectures connected with this general problem. Our aim, of course, is not to give a definitive answer to the questions presented above, but rather to provide some experimental results that can be helpful, among other things, to view these general philosophical problems in a new light. Moreover, this paper is also meant to provide new data for research on the embodiment of abstract concepts, and particularly of those specific abstract concepts that depend on an institutional and legal framework. Our research would thus contribute to an important new trend characterizing the most recent studies on abstract concepts.

Journal of Law and Society, 1997

Law: Natural, Artificial and Unnatural , 2022

There are numerous felt needs, emotional, psychological, economic, equitable treatment in various fora or spheres of common (meaning interpersonal and collective spaces) life, to name the most obvious, that systems of “justice” and consequently of “law” are invoked to address. Demands on such systems, assuming these demands are not intentionally malafide or exploitative or abusive, range from that of vengeance and retribution to restoration, restitution and rehabilitation. The systems upon which such demands are made, with vastly varying degrees of expectation of fulfilment, and perhaps an even vaster array of protocols required to invoke judgement or resolution of some sort, likewise range from supernatural, moral and religious structures and apparatus extant to Global or International Instruments of Conventions and Treaties, with their own apparatus and structures all the way through “national” or “sub-national” systems, to “customary” or “traditional” practice, many of these last as diverse, contradictory, complex, even disguised as extrusions of a larger protocol, such as the “larger” systems of justice or even merely of ordinary, everyday life, the “normalcy” of mundane social interactions and transactions within which they are embedded. All these are of course, constantly mutating whether primarily in response to each other or to experienced situations and few, if any, provide unalloyed satisfaction. Certainly not for any appreciable duration. Rarely, if ever, is there a Permanent Resolution. Indeed, the array of caveats and exceptional or innovative resolutions, morphing into new legal trajectories of society have resulted in most formal bodies of law becoming unwieldy, fragmented, esoteric and inaccessible

ПРОБЛЕМИ ЦИВІЛЬНОГО ПРАВА ТА ПРОЦЕСУ, 2021

Legal norms in themselves do not give rise to legal relations, do not give rise to subjective rights and legal obligations of parties of relationship. In order for public relations, or rather the social ties of members of society to be successfully coordinated with each other in the appropriate legal framework, legal grounds for their emergence are necessary. The ground for the emergence of rights to objects are juridical facts. They mean the consequences of circumstances of reality (factual or legal), with which parties, due to formal legal certainty (contract, custom, court decision, legal norm) link emergence, change or termination of rights, individual competences or entire legal relationship to the relevant object. Actions are the acts of person characterizing the external expression of his/her will and consciousness as a result of purposeful activity in a social environment governed by law. The most common ground for emergence of the right to an object related to the action is a transaction, which means the action of a person aimed at establish-ing, changing and terminating civil rights and obligations. The most widespread ground for the emergence of rights to an object in legal relations of obligations is a contract. In the system of juridical facts, the contract is declared in such lawful actions as a transaction (bilaterally binding one). The contract as a juridical fact is the ground for the acquisition of property right, ensures the transformation of an absolute legal relationship into an obligation one with the subsequent establishment of a new absolute legal relationship. The fulfillment of contractual obligations on the transfer of property into ownership leads to the emergence of property rights for one party (purchase and sale, dona-tion) or for both parties (exchange). The ground for the emergence of rights to objects is also a legal act. It is under-stood as an action that entails a legal consequence, regardless of whether these actions were aimed at the consequences, which (by virtue of the rule of law) are called, or not. Acts cause legal consequences, regardless of whether the subject was aware or not aware of their legal significance, whether he/she wanted or did not want them to occur. The above grounds for the emergence of rights to an object are initially caused by the commission of legally significant actions that are not related to the onset of legal and actual consequences in the form of transfer of ownership to another person. The content of a legal act in this case is due to the need to ensure the safety of property of another when it is identified. In the future, the formation of such a configuration of juridical facts as the discovery of property of another, public noti-fication of incidentis and the expiration of the statutory period for ensuring the safety of this property entails the onset of legal consequences in the form of the emergence of a real right to an object. It should also be noted that a legal act leads to the creation of such real right object as a literary, artistic, musical or scientific work (Articles 437, 451, 458 of the Civil Code of Ukraine), an invention, a utility model, an industrial design (Ar-ticle 462 of the Civil Code of Ukraine), rationalization proposal (Article 484 of the Civil Code of Ukraine), commercial secret (Article 506 of the Civil Code of Ukraine) and other objects of intellectual property rights. The writing of a poem creates copyright regardless of whether the author was aware of the meaning of his/her actions or not. The motivation of the subject of intellectual property rights is aimed not at achieving the legal consequences stipu-lated by the norm in the form of material remuneration or the acquisition of other property rights, but at the realization of the individual’s own creative abilities. Illegal actions as a juridical fact (tort) serve as the basis for the emergence of protective legal relations, the content of which is the implementation of the com-pensatory and restorative function of civil law. Tort is the basis for the emergence of rights to such object as a property claim for compensation for material and mor-al damage caused. This is an object of law of a special kind, implemented only in protective legal relations. Its peculiarity, in contrast to other objects of the material world, is that this object is not subject to free circulation in civil law transactions. This is due to the nature of protective legal relations, the essence of which boils down to the need to compensate for the damage caused directly to the victim by the causer, the inextricable connection of such compensation with the personality of the subjects of the tort legal relationship. The grounds for the emergence of rights to objects juridical facts are unique in their nature. Their uniqueness lies in their singularity, which is caused by the nature of human behavior in social conditions. Depending on the content of the social environment in which they arise, juridical facts are configured according to individual characteristics. Their diversity cannot be reflected normally or doctrinally. It is possible to single out only the general contours in which they find their external manifestation. Such contours are the strong willed nature of the subject of law, which allows us to combine juridical facts in the following algorithms: action event; event action; legal act act of law; legal act event legal act, etc.