Can There Be an Artifact Theory of Law?

Burazin, Luka

doi:10.2139/ssrn.2326744

Cited by 5 publications

(24 citation statements)

References 21 publications

(3 reference statements)

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“…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 .…”

Section: An Artifact Theory Of Lawmentioning

confidence: 99%

“…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 .…”

Section: An Artifact Theory Of Lawmentioning

confidence: 99%

“…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)…”

Section: An Artifact Theory Of Lawmentioning

confidence: 99%

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

Section: An Artifact Theory Of Lawmentioning

confidence: 99%

“…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.…”

Section: An Artifact Theory Of Lawmentioning

confidence: 99%

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Flaws and Virtues ofAn Artifact Theory of Law

García-Godínez

2019

Ratio Juris

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Section: An Artifact Theory Of Lawmentioning

confidence: 99%

Section: An Artifact Theory Of Lawmentioning

confidence: 99%

Section: An Artifact Theory Of Lawmentioning

confidence: 99%

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

Section: An Artifact Theory Of Lawmentioning

confidence: 99%

Section: An Artifact Theory Of Lawmentioning

confidence: 99%

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Flaws and Virtues ofAn Artifact Theory of Law

García-Godínez

2019

Ratio Juris

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In defence of constitutive rules

Roversi

2021

Synthese

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Although the notion of constitutive rule has played an important role in the metaphysical debate in social and legal philosophy, several authors perceive it as somewhat mysterious and ambiguous: the idea of a specific kind of rules that are supposed to be “magically” constitutive of reality seems suspicious, more a rationalistic fiction than a genuine explanation. For these reasons, reductionist approaches have been put forward to deflate the explanatory role of this notion. In this paper, I will instead try to defend constitutive rules. My thesis is that the notion of constitutive rule is explanatorily helpful because it gives a complete account of an important phenomenon in the social and legal domain, namely, that of artifactual entities endowed with statuses that can have emergent normative properties. Conceiving of these entities as rule-constituted artifacts is an important part of what H. L. A. Hart called “the internal point of view” toward law, and for this reason constitutive rules should be included in an explanation of that point of view as an integral part of the life of institutions. The structure of my argument will be as follows. First, I will provide an example of an important phenomenon in the internal point of view, namely, the fact that individuals can have normative reactions not about the specific regulation of an institution but about its underlying purpose and rationale—what in the legal domain is called the ratio of a norm. Then I will identify two reductionistic approaches on constitutive rules. The first approach is exemplified by Brian Epstein’s idea that the phenomena explained by constitutive rules are better explained in terms of metaphysical (grounding/anchoring) relations. The second kind of reductionism is instead exemplified by the idea (held by several authors, among whom Alf Ross, Riccardo Guastini, Frank Hindriks, and Francesco Guala) that the phenomena explained by constitutive rules can be accounted for in terms of regulative rules plus a certain terminology. I will try to show that neither of these approaches can explain normative reactions to the ratio of an institution from an internal point of view: While the first cannot explain the fact that the reaction is strongly normative, the second cannot explain the fact that the reaction is about the ratio of a normative entity. Constitutive rules can instead explain both things and should be preserved as an important notion for the analysis of institutional ontology. By way of constitutive rules we create something: immaterial, rule-based institutional artifacts that can have emergent normative properties.

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Between Legal Philosophy and Cognitive Science: The Tension Problem

Jakubiec

2022

Ratio Juris

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Much controversy has arisen in recent years about the relation between legal philosophy and cognitive science, with some authors announcing a revolution brought about in law by the advances in the scientific study of cognition. At the same time, pessimistic declarations were made, and the significance of cognitive science for law and legal philosophy was denied. In this paper I argue that representatives of legal philosophy are now facing a "tension problem" which comes as a consequence of the following beliefs: that legal philosophy should be naturalized; that contemporary cognitive science is not a source of knowledge proper, that is, a source of naturalization; and that contemporary cognitive science is the best available source of knowledge about cognitive mechanisms. To illustrate the significance of the problem, a case study is presented that concerns research devoted to abstract concepts and its significance for the issues analyzed by legal philosophers, such as legal concepts and legal cognition. More general remarks about the manner of naturalizing jurisprudence are also presented.

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Can There Be an Artifact Theory of Law?

Cited by 5 publications

References 21 publications

Flaws and Virtues ofAn Artifact Theory of Law

Flaws and Virtues ofAn Artifact Theory of Law

In defence of constitutive rules

Between Legal Philosophy and Cognitive Science: The Tension Problem

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