Legal officials and artifact theory of law

Abstract

In this chapter, I argue that the role legal officials play in constituting legal institutions as kinds is diminished compared to what one would expect after adopting the general positivistic attitude towards artifact theory of law. First, I offer a short summary of the idea of "legal officials" as it is employed by legal positivists. I then describe two possible alternative views in respect to the role of officials in the artifact theory of law. The first one assumes that since only legal officials are authorized to say what the actual norms of a legal system are - it is via their collective intentionality that legal kinds truly come into existence. I argue that the consequence of this view is that the general community of citizens (or the folk) is supposed to track the content of collective intentionality of legal officials and can eventually turn out to be mistaken about it. On the other hand, one can assume that it is the collective intentionality of the folk that ultimately constitutes the content of legal kinds and that the role legal officials play ought to be considered as purely instrumental. As a result, all the properties of legal kinds (and not just their general ideas) are provided by the folk and legal officials ought to track them and can eventually turn out to be mistaken about it. I aim to describe the latter view as well as to describe its consequence, i.e. that by exploiting their authority, legal officials may (and usually do) impose or force their views regarding contents of legal kinds on the folk. This is, however, irrelevant if one aims to provide an ontological artifactual interpretation of the social facts thesis.