Law as an Artefact: Three Questions

Abstract

Artifact theories of law are aimed at explaining the nature of law, that is, an- swering the ontological question of legal philosophy in terms of the ontology of artifacts in general. In recent years, some legal theorists (particularly Luka Buraz- in, Jonathan Crowe, Kenneth Ehrenberg, and Corrado Roversi) have been putting forward artifact theories of law to deal with several classic legal-philosophical problems, such as the role of functional explanation in the legal domain, legal normativity, the relation between law and morality, the relation between author- itative production and recognition, and the role of officials in the construction of legal systems. In this paper, I will formulate three questions an artefact theorist of law could be asked, and I will try to answer them, in the process highlighting and weighing the theory’s pros and cons. The first question will be, Is there just one artefact theory of law or are there many? Here, I will consider whether the different artefact theories of law that have so far been put forward can be traced to a common root: yes, I will argue, and to a significant extent. The second ques- tion goes directly to the point: What are the explanatory advantages of an artefact theory of law? I will argue that an artefact theory can do a good job at explaining two typical dialectics of the legal domain identified by legal philosophy, namely, the dialectic between the production of law and its recognition (a dialectic exem- plified in the debate between legal positivism and legal realism), and the dialectic between two different kinds of legal interpretation (teleological and in terms of legislative intent); on the other hand, I will show that an artefact theory typically has greater difficulty than a straightforward socio-ontological account in explain- ing authority and emergent institutions. Given this balancing of reasons in favour of and against an artefact theory, my last question will be, why, then, should we choose an artefact theory over a socio-ontological theory of law? Here I will argue that there is no direct opposition between the two approaches: An artefact theory can be seen as specifying a socio-ontological account, in a way that fruitfully ad- dresses the hypostatizing aspect of legal experience.