Legal systems, intentionality, and a functional explanation of law

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Notes

1 Kenneth M Ehrenberg, The Functions of Law (Oxford University Press 2016).

2 With two important caveats. First, according to Ehrenberg, this does not imply that knowing what functions law serves is sufficient to understand law, and second, that ‘success or even having the characteristic function is necessary to be a member’ of the kind ‘law’ (31–32).

3 According to Ehrenberg, the third sub-type of law are legal norms, ‘distinct from laws and legal systems, although tokens of those will always also include one or more legal norms’ (19–20). However, since he himself does not go further than simply mentioning this sub-type, I will skip it in my argument.

4 However, there is perhaps a possible way out for Ehrenberg. If he distinguished between a legal system and a momentary legal system (Joseph Raz, The Concept of a Legal System (Clarendon Press 1980) 34–35), he could have claimed that a momentary legal system, which is a set of all laws of a system valid at a certain moment, is an institutionalized artifact or formal institution since what constitutes a momentary legal system (i.e. a set of valid legal rules of a system at a particular time t) is determined by the criteria of validity set by the systems’ rule of recognition. However, legal systems as such would still be informal institutions (according to Searle’s terminology), since there are no codified rules determining what generally counts as a legal system.

5 Nevertheless, I agree with him that they are. See Luka Burazin, ‘Legal Systems as Abstract Institutional Artifacts’ in Luka Burazin, Kenneth E Himma and Corrado Roversi (eds), Law as an Artifact (Oxford University Press 2018) 112–35. Well, with one caveat, since according to my understanding they are institutional (i.e. norm-based and constituted, at least partly, by collective recognition of the relevant community), and not necessarily institutionalized (with the exception of momentary legal systems, for which see the preceding note).

6 In fact, in another place in the book, using Dipert’s distinction between tools, instruments, and artifacts, Ehrenberg gives a different characterisation of customary law, saying that ‘[t]he best way to address it may be to see it as a vestigial counterexample to the notion of law as a full-fledged artifact, putting customary laws instead in the category of instruments or tools’ (135, n 39). Since he says this in passing (in a footnote) and does not argue for this in more detail, I’ll skip this in my comment.

7 See Luka Burazin, ‘Can There Be an Artifact Theory of Law?’ (2016) 29 Ratio Juris 395–99, Luka Burazin, ‘Legal Systems as Abstract Institutional Artifacts’ in Luka Burazin, Kenneth E Himma and Corrado Roversi (eds), Law as an Artifact (Oxford University Press 2018) 114–22, 124–26. For a similar account based on collective intentionality see Jonathan Crowe, ‘Law as an Artifact Kind’ (2014) 40 Monash University Law Review 743–48, although he counts neither collective acceptance as part of the intention condition nor those who collectively accept as authors.

8 Corrado Roversi, ‘On the Artifactual – and Natural – Character of Legal Institutions’ in Luka Burazin, Kenneth E Himma and Corrado Roversi (eds), Law as an Artifact (Oxford University Press 2018) 95–96, 98, Corrado Roversi, ‘Legal Metaphoric Artifacts’ in Bartosz Brożek, Jerzy Stelmach and Łukas Kurek (eds), The Emergence of Normative Orders (Copernicus Center Press 2015) 219, 233.

9 For an account of the artifactual character of customary law in these theories see Jonathan Crowe, ‘Law as an Artifact Kind’ (2014) 40 Monash University Law Review 746, Luka Burazin, ‘Can there be an Artifact Theory of Law?’ (2016) 29 Ratio Juris 395–96, Luka Burazin, ‘Legal Systems as Abstract Institutional Artifacts’ in Luka Burazin, Kenneth E Himma and Corrado Roversi (eds), Law as an Artifact (Oxford University Press 2018) 120, and Corrado Roversi (ed), Law as an Artifact (Oxford University Press 2018) 99.

10 Ehrenberg himself says that ‘the creation of legal rights and duties are a means by which law might perform other functions, rather than being functions themselves’ (126); ‘the creation and manipulation of statuses is generally a means rather than an end of institutions’ (136, n 42); ‘We’ve seen that status conferral is more properly understood as one characteristic means by which institutions perform their functions’ (144).