engleski

Legal Systems as Abstract Institutional Artifacts

In this chapter I analyzed the claim that legal systems should best be understood to be abstract institutional artifacts and sought to provide a more detailed account of some of the questions arising from such a claim. In Section 2, I argued that legal systems existentially or ontologically depend on collective intentionality and that it is conceptually sufficient that it be in the form of (a we- mode) collective recognition (or acceptance), where this is understood in the sense that members of a relevant group have particular collective attitudes (i.e., we- attitudes) which are about or refer to the existence of their legal system and in this way constitute their recognition. In Section 3, I claimed that this recognition, as a social practice accompanied with its participants’ particular attitude toward it, in fact constitutes a (constitutive) social norm, and distinguished between different types of (constitutive) norms by which a group of people collectively imposes a certain institutional status (like that of officials) or make it the case that a certain institutional status (like that of a legal system) exists. In Section 4, I claimed that legal systems often emerge gradually from a standing practice since collective recognition is often preceded by and emerges from some existing rudimentary pre- legal practices which may be said to create the context or the background in which constitutive social norms of recognition can emerge. I also argued that those who collectively recognize that someone is a legal official or that a legal system exists do not have to have a full- blown concept of what they recognize but only some degree of conceptual understanding and that what really matters is how participants actually treat and use the institutional artifact in question and what deontic powers they attach to it or its users. Finally, in Section 5, I argued that the actual existence of a legal system (and its actual character) depends on whether or not the content of collective recognition was largely successfully realized, which is manifested precisely in people actually using a legal system, i.e., in their social (legal) practices.

law, legal systems, artifacts, institutions, social ontology

nije evidentirano