Legal Metaphoric Artifacts

Abstract

In this paper I take it for granted that legal institutions are artifacts. In general, this can very well be considered a trivial thesis in legal philosophy. As trivial as this thesis may be, however, to my knowledge no legal philosopher has attempted an analysis of the peculiar reality of legal phenomena in terms of the reality of artifacts, and this is particularly striking because there has been much discussion about artifacts in general philosophy (specifically analytic metaphysics) over the last twenty years. In particular, the concepts of intention, function, plan of action, and history are in competition to explain the ontology of artifacts, and a similar competition can be found at the core of legal theory. Such a striking parallelism between the domain of artifacts and that of legal institutions is a clue for legal ontology that deserves further attention: I will offer my own interpretation of this parallelism in the first part of this paper (Sections 2 and 3). In providing a theory of legal institutions as artifacts, one could be led to the conclusion that law is essentially an artificial phenomenon, something which does not bear any significant relationship to the domain. However, I think that such a conclusion would be mistaken. In fact, this is the second thesis I want to explore in this paper: not only that legal institutions are artifacts, but also that they can be artifacts which in some sense mirror, or imitate, some descriptions of the natural, pre-social reality we live in. What I would like to show is not that legal institutions are natural in the sense that they have some feature which is not human-dependent, as some law theorists would say, but rather that their conceptual content can depend on our conceptualization of the domain despite being entirely artifactual. This is what I will call the institutional mimesis behind several important instances of legal artifacts, and I will deal with it in the second part of this paper (Sections 4 and 5).