Law Without Matter? The Immateriality Thesis: A Critical Commentary

Abstract

Despite its popularity in recent theorisations of law as an artifact, the idea that law is an immaterial being, independent from even the documents that contain legal acts, has not been subjected to a focused analysis. This paper fills this noticeable gap. After providing generalizing account of the Immateriality Thesis, based on its different expositions in the literature, the paper criticises it. First, it argues that it is based on the counterfactual assumption that semantic content can exist beyond any carrier for itself. The paper then elaborates on the thesis’ empirical implausibility, particularly its ignorance of how much the law is as it is due to writing. Third, the paper reveals how the thesis is difficult to combine with other jurisprudential issues, notably law’s effectiveness. Following such a critique, the paper considers the possible origins of and reasons for the thesis. Given its highly questionable character, the paper concludes with some general ideas on taking law’s materiality seriously.