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.
Highlights
The most influential theory of law in current analytic legal philosophy is that of H.L.A. Hart (1994).1 Hart and his followers understand law to be a kind of institution.2 The most influential theory of institutions in current analytic social philosophy is that of John Searle (1995, 2010).3 one would hope that the two theories are compatible in
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 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
Summary
Searle tells us that institutional facts are a subclass of social facts, which means that they depend upon collective intent (1995, 26; 2010, 156). Some of these social facts are about practices that are “codified,” which lends them the properties of an institution, uncodified, “informal” institutions are possible (Searle 1995, 53). While Searle remains vague about how he conceives of codification itself, claiming only that to get type-level functional ascription, codification must be “official” (employing the quotation marks: 1995, 53) and explicit, he clearly envisions legal enactments as paradigm cases We can put these notions together to suggest a more complete picture: there will be a person or body empowered (by a constitutive rule of the institution) to establish the assignment of function (within a given domain of discourse) as at least one of its tasks.. While Searle notes that there is no bright line distinction between social facts generally and institutional facts, he claims, “The characteristic institutional move, is that form of collective intentionality that constitutes the acceptance, recognition, etc., of one phenomenon as a phenomenon of a higher sort by imposing a collective status and a corresponding function upon it” (1995, 88). Responsibilities are of hosts and invitees. The mark of what makes it pass from an informal to a formal institution is whether its rules are codified such that we can say which instances are valid instances of the kind and which (if any) are merely counterfeits
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