Law Is an Institution, an Artifact, and a Practice

Abstract

Seeing law as an artifact might raise concerns about a metaphysical clash between this view and one in which law is described as a practice. Many have argued that seeing law as an artifact is compatible with, or even demanded by, H.L.A. Hart’s legal positivism, in which law is based on a practice theory rule (and which this chapter shows to fit nicely with Raimo Tuomela’s understanding of social practices). However, Scott Shapiro has attacked Hart’s view for committing a category mistake, claiming rules and practices are ontologically distinct. Seeing law as a kind of artifact helps to show how practices can be normative in that artifacts come bundled with (weak) norms of usage and (stronger) norms of recognition. Lingering doubts about seeing law as a kind of artifact are addressed in this chapter by understanding its institutional nature.

The Institutionality Of Legal Validity

“…Secondly, we can avoid confusion by keeping in mind the distinction between law and the government organizations that create, interpret, change, and sustain it. (On the compatibility of seeing law as an institution and a practice see Ehrenberg . )…”

“…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 ().…”

“…Secondly, we can avoid confusion by keeping in mind the distinction between law and the government organizations that create, interpret, change, and sustain it. (On the compatibility of seeing law as an institution and a practice see Ehrenberg 2018. ) 3 While Searle does acknowledge that his usage of "institution" is technical (2005,19), he does so in order to exclude the sense of the term associated with large areas of human practices (like religion or economics as such), described generally and without deontic implications.…”

“…Even if a law is identically worded to one in another legal system (as frequently happens with uniform codes adopted across multiple states in the U.S.), it needs to be adopted according to the procedural rules of each jurisdiction to be valid in that particular jurisdiction. Of the legal theories that treat issues of legal validity, legal positivism goes furthest in its emphasis on the socially constructed-institutional nature of law 7 (and 4 An extended analysis of their points of compatibility can be found in Ehrenberg (2016). 5 The possibility of any normative demands being based on mere (non-normative) facts is, of course, a huge matter of contention in the philosophy of value, with Hume claiming this is impossible.…”