Acting within and Outside an Institution

Abstract

There is an influential, and in a sense paradigmatic view in legal philosophy according to which being a participant in a legal system entails adopting a specific internal point of view. This conception, which traces back to H.L.A. Hart, connects our participation in a given legal practice with the acceptance of, and abidance to, a given system of rules. I will call this the Rule-conception of institutional action. I want to argue that this conception, if taken alone, severely limits our capability to explain different kinds of action made in a given institutional domain. In my view, that conception must be enriched in order to have a full explanatory potential, particularly because the very idea of being internal or external to a given institution is much more fuzzy and shaded than it can appear at first sight. The structure of this paper is as follows. In Section 2 I will argue that, if we complement the Rule conception of institutional action with a pragmatic analysis, a broader and more shaded phenomenology will emerge than that shown by the binary external/internal distinction. For this purpose, I will resort to a simple example of institutional action drawn from chess, and I will apply the analytical framework of speech acts theory — what I consider a paradigm of pragmatic analysis of language — to this example. In this way, I will arrive at a distinction among seven different kinds of institutional agents in terms of different degrees of internality and externality with respect to the institutional practice. Then, in Section 3, I will apply this analysis to a legal example drawn from criminal procedure, showing that the external/internal distinction can be shaded also in the legal domain. Finally, I will draw some conclusions.