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Ontology Hermeneutics and the Concept of Valid Law. The Field of Logical Operations. Legal Validity and Hermeneutics. Constitutional Theory in the Light of the New Institutionalism. Political Power and the Structure of the Constitution. The Constitution and the Governing Ideas of Democracy. Characteristic Features of the Formalteleological Theory of Action.

Action and Omission in Criminal Law Doctrine.

An Institutional Theory of Law

Institutional Theory and Institutional Legal Positivism. The Concept of the Institution and its Typology. Institutional Theory in Modern Jurisprudence. Institutional Theories in Sociology. Institutional Normativism and Sociology.


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The Language of Practical Philosophy. The Role of the Law in Schelskys Theory. Theses for a Theoretical Sociology. But it is clear from Searle's usage that his notion would apply equally well to legal norms imposed by judicial action in that they are similarly formalized. I will use the term in Searle's broad institutional sense even when talking about laws or legal systems, although we should keep in mind that legal codification is one species of this broader notion. That an object is made out of wood and metal is a brute fact; that it is a hammer is a social fact. Conformity with this formula is not absolutely necessary.


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In other words, an institutional fact reflects a certain kind of social activity that can take place over time by creating, identifying, or changing rights and responsibilities among the participants. It is created when we have a set of rules that constitutes the activity by imposing a status upon the behavior or related objects or events. While Searle claims constitutive rules create the possibility for the activity and thereby differ from rules that simply regulate the activity , 27 , 16 16 Both Searle and Hart understood that constitutive rules can also regulate the activity.

Any distinction that can be maintained would therefore attach to the functions that the rules perform, the descriptions we give of them, and the behaviors we perform in following them. Using this distinction therefore doesn't suggest that there are two different types of rules; it only calls attention to the way a given rule is operating in a specific context. I will go into greater detail about Searle's notion of collective intentionality below. The intentions are held by individuals; their content is collective , Otherwise I could create a new institutional fact simply by looking at my pen and declaring it to be the scepter of power to be used in all official state ceremonies.

In many of those other cases, the individual intention of a single creator may be enough for status facts about the object to be made true. Since it requires collective intentionality, we can call the creation of an institutional fact a collective imposition of function. The imposition of status functions takes two forms. In one form, collective intention attributes the function to the recipients individually.

This is true for cocktail parties Searle's example. Generally, we are only at a cocktail party when most of the people at the gathering consider it to be a cocktail party. I will return to this point below. In the other form, our collective intention attributes the function to the recipients as a type. This is true for money again, Searle's example. A given piece of paper or metal counts as money because it fits a certain description and the status of money has been conferred upon anything that fits that description although this need not be conferred by law.

In the latter case, then, there must be something that fixes the type and determines how to recognize tokens as instances of the type, bearing its status function. This is done through codification. Codification is therefore a formalized process of declaration for attaching or creating statuses.

This is the closest we can get to a definition based on Searle's treatment. To be a cocktail party is to be treated as a cocktail party. Each cocktail party must be collectively treated as a cocktail party in order to be a cocktail party, but a certain twenty dollar bill can still be a piece of currency even if no one ever comes into contact with it. Where that codification is possible but has not yet been done, the institution is merely informal Searle , 91; , Among other things, an informal institution lacks clear criteria for identifying invalid instances or applications of the institution's norms.

Hence the use of codification to distinguish between formal and informal institutions is precisely what allows for the presence of criteria of validity within the institution. We can put these notions together to suggest a more complete picture: there will be a person or body empowered by a constitutive rule of the institution to establish the assignment of function within a given domain of discourse as at least one of its tasks. Additionally, the person could be artificial and the body could be the entire community. Furthermore, that person or body must issue a symbolic representation of the codification, usually by reducing it to words.

Hence, we can extend the notion of codification to include the need for an official declaration of some kind, while uncodified, informal institutions can form without the need for declarations. The phrase quoted in the text and other passages of Searle's see e. Hence codification involves some notion of fixity that entails the loss of these characteristics. A fully developed legal system is less static than a system of entrenched customs because it provides for purposive change. But it is also less flexible than a system relying on token recognition of statuses because it requires following an institutionalized procedure for change.

The example of cocktail parties might bring this process further into the light. Initially, cocktail parties were simple social facts. People came together to drink alcohol and engage in witty banter, without thinking anything special of it or attaching to it any special statuses, rights, or duties.

They did so intentionally in the sense that they intended to drink alcohol and engage in witty banter at a gathering of people, and that required a similar intention on the part of others. But they did not necessarily consider it a special event to do so.

Many, perhaps even most, cocktail parties are still like this, especially those that seem more to be cocktail parties in retrospect than in the planning. Other cocktail parties are special events in the sense that hosts decide to throw a cocktail party: they send out invitations in which they request replies. People who receive the invitations know that they are invited to a cocktail party, and that it is incumbent upon them to reply.

If they attend, they do so knowing what to expect when they get there: that the hosts will provide a certain atmosphere and some alcohol. These special events have risen to the level of informal institutions. Some official body would have to codify rules specifying which gatherings are to be considered cocktail parties, and what the rights and responsibilities are of hosts and invitees.

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Searle's example of the Korean War shows the unavailability of informal institutions when codification is present , It was still a war in the basic social fact sense and so it is not incorrect to call it a war , but it was not a war in the institutional sense. Given this analysis of Searle's, we cannot say that the Korean War was an informal institutional fact.

Its status as a war was studiously and purposely not made an institutional fact, and was purposely left simply a social fact. The mark of what makes it pass from an informal to a formal institution is thus whether its rules are codified such that we can say which instances are valid instances of the kind and which if any are merely counterfeits. The problem arises when we get to the most basic constitutive rule that identifies which codifications are valid.

Codification in complex institutions is iterative Searle, , 80f, The only reason that a piece of currency is money is that there is a codification of the appropriate assignment of function. They are not generally thought to be reducible to a legal formula and recorded as law since they would require a further more basic rule to enable that recording to serve as legally valid and hence there would need to be another more basic rule below.

See Hart , , Alexander and Schauer , and as discussed immediately below. See also e. On these points Searle and most legal positivists would agree. Notions of legal validity are similarly dependent on more basic constitutive rules, which in turn are dependent on still more basic rules Hart , But Searle's framework does not give us an adequate way to account for the most basic validity rule.

The most basic rule directing legal officials how to recognize valid laws cannot itself be recorded as a law within the legal system it validates Shapiro , If we were to try to legislate or legally codify the basic validity rule, we would need to have another — even more basic — rule telling us to recognize the legal validity of the rule we just tried to legislate.

An institutional theory of law : new approaches to legal positivism

And that rule would then take its place as the basic validity rule. Furthermore, since it is an ultimate rule, it is not dependent on others for validity; questions about its legal validity are misplaced since it is constitutive of legal validity Hart , ; Shapiro , 90; Coleman , 8 n.

It cannot be formulated as a law within the legal system precisely because it is the rule that determines what counts as law in that system. See also Dickson , As I discuss below, this statement is not intended to endorse Hart's practice theory explanation of the basic validity rule.

According to Hart, the rule of recognition is not even usually stated explicitly , Clearly, this means that the basic validity rule cannot be codified in the legal sense. But it also raises a problem in Searle's broader sense of codification. Constitution specifies the content of the basic validity rule for United States law, and that the Constitution was ratified according to an official process and hence codified in Searle's sense.

There are several problems with this objection. For one, following Hart's analysis, it is more correct to say that the rule of recognition for the U. See also generally Greenawalt , reprinted in Adler and Himma The content of the rule is a description of criteria legal officials use to determine which laws are valid within their system. But it also serves as a reason for those officials to use those criteria where they are either motivated or have good reason to do as other officials are doing.

Their authority is a mutually supporting network of recognition under the basic validity rule. This argument has received its share of criticism e. I sidestep this issue here by focusing on the basic validity rule's normative nature without taking a position on from where that normativity is properly derived. I address this issue more directly and offer my own reply to Shapiro on this issue in Ehrenberg The idea of accepting a description of the behavior of officials as a reason for them to behave in accordance with the criteria exemplified by that behavior reflects the characteristic transformation of a social fact into an institutional one under Searle.

Whether this institutional obligation is a moral one depends upon the wider moral legitimacy of the institution. It is this characteristic that requires us to see the basic validity rule as more than a simple social fact. Yet it does not fit within Searle's framework to describe its institutional nature, neither as an informal institutional fact, nor as a formal one.

It would be a requirement within Searle's theory for the basic validity rule to be codified, and yet it is impossible to do so because of its special characteristics. That is the problem of who authorized the rule makers to make the rule specifying who is authorized to make rules although put in terms of legal norms. While that is a general problem of authority in formal contexts, our problem is one in the ontology of social institutions: how an informal, customary rule can provide the fixity needed for the validity standards required in formal institutions.

The reliance of legal positivists upon the acceptance of the basic validity rule as the cornerstone of a legal system mirrors Searle's analysis that legal systems depend on collective acceptance rather than force , , This is almost identical to Hart's point that for legal force to be applied against anyone within a jurisdiction, there must already be widespread acceptance of the legal authority , See also Shapiro , , detailing the need for trust in legal officials for a legal system to operate.

One might think that since the rule itself depends for its existence only on the acceptance of certain key officials, it does not depend upon a broader collective intentionality. This would seem to run afoul of Searle's claim that the collective who must accept the institution consists of those who are members of or subject to the institution.

In the case of the institution of law, everyone in society is subject to the institution and yet only the key officials need accept the basic validity rule.

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This is not the case for two reasons: First of all, the rest of the populace tend to defer to those officials in the determination of legal validity. This is analogous to a linguistic or epistemic division of labor. We rely on scientific experts to determine the atomic structure of gold, allowing us to rely on their expertise or that of others familiar with the scientific markers to decide for us which references to or exemplars of gold are correct and which are really just iron pyrite.

The point is that the linguistic community relies on experts in either case. Similarly, we rely on legal experts officials to determine which putative legal rules are valid under our legal system. But this distinction does not threaten the analogy made here. Secondly and this bears some emphasis , it is not necessary for the collective that possesses the relevant intention to be identical with the collective to which the institution is meant to apply.

If there is a splinter group off in the woods claiming that the government is illegitimate because of some perceived inconsistency between the details of its formation and the procedures found in foundational texts, we do not immediately say that the government's legitimacy is a subjective matter. That the key officials accept the legitimacy of the government is enough to make it so by its own lights since the institution itself gives them the power to make the determination, and that institution is supported by at least the tacit acceptance of the populace.

This is not to say that the splinter group does not have a valid point, only that the legal legitimacy of the legal system is not a subjective matter simply because some people disagree. This is similar to the decision of a referee in certain sporting events. Her determination about a disputed play suffices for the official record of the game, regardless of what players or spectators might think. This is not to say that the referee is infallible. Players or spectators who are familiar with the rules might dispute her determination on the basis of their own perception and interpretation of events.

But they cannot reasonably dispute that the referee is given the power to make the final determination of the play's official status within the game. Of course, the referee is just one individual, so there must be a network of collective intentionality that puts her in that position and gives her the power to make the official determination. The basic validity rule is necessarily an object of collective intentionality.

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