The Institutionality Of Legal Validity

Abstract

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.

Determination from Above

“…First, we could be concerned directly about the role of the law in influencing our behavior. If legal positivism is true, then legal regimes are institutional-a part of institutional reality (Ehrenberg, 2020). So, it is reasonable to be concerned about whether and how law affects our freedom.…”

Why law is law

“…10 (3) These procedures are best understood as operating within the ambit of law conceived as a social institution, in which normatively charged status functions are assigned to various entities and events by virtue of Searlian constitutive rules. 11 This conception of law's nature and generation allows Ehrenberg to point out three aspects he considers crucial for explaining law's normative import. One is taken to follow directly from law's nature as a codified social institution.…”