Can There Be an Artifact Theory of Law?

• DOI: http://doi.org/10.1111/raju.12134
• Date: 01 September 2016
• Author: Luka Burazin
• Published date: 01 September 2016

Can There Be an Artifact

Theory of Law?

LUKA BURAZIN*

Abstract. The idea that particular legal institutions are artifacts is not new. However,

the idea that the “law” or “legal system” is itself an artifact has seldom been directly

put forward, due perhaps to the ambiguities surrounding philosophical inquiries

into law. Nevertheless, such an idea has recently been invoked more often, though

not always developed in detail in terms of what the characterization of the “law” or

“legal system” as an artifact entails ontologically, and what consequences, if any,

this has for philosophical accounts of law. As a result, the primary aim of this paper

is to attempt an inquiry into what the claim that “law” by its nature or character is

an artifact entails, and what an artifact theory of law might look like.

1. Introduction

The idea that particular legal institutions are artifacts is not new. It seems intui-

tively correct to say that a particular legal institution, e.g., a mortgage or a leasing

contract, could not exist unless somebody intentionally created it. However, due

perhaps to the ambiguities surrounding philosophical inquiries into law, the idea

that “law” itself is an artifact has seldom been directly expressed, with some nota-

ble exceptions that have emerged in the recent debate. An example of the formula-

tion of such an idea is to be found in a recent paper by Leiter:

The concept of law is the concept of an artefact, that is, something that necessarily owes its

existence to human activities intended to create that artefact. Even John Finnis, our leading

natural law theorist, does not deny this point. I certainly do not understand Kelsen, Hart,

Raz, Dickson or Shapiro to deny this claim. Those who might want to deny that law is an

artefact concept are not my concern here; the extravagance of their metaphysical commit-

ments would, I suspect, be a subject for psychological, not philosophical investigation. (Leiter

2011, 666; footnotes omitted)

Despite the fact that the idea of “law” as an artifact has recently been invoked in

the legal-philosophical literature (Ehrenberg 2009, 91–113; Gardner 2004, 168–81;

Leiter 2011, 663–77; Schauer 2012, 457–67), this idea was not always developed in

* I am grateful to LynneRudder Baker and Risto Hilpinen as well as to two anonymousreferees

for valuablecomments on an earlier draft of this paper.The paper was written within the frame-

work of the ZagrebFaculty of Law research project “NewCroatian Legal System.”

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Ratio Juris. Vol. 29 No. 3 September 2016 (385–401)

detail with regard to the questions of what the claim of the “law” or “legal system”

as an artifact entails ontologically and what consequences, if any, this claim has for

philosophical accounts of law.

As a brief preliminary remark I should point out that the artifact theory I

develop in this paper takes as its object “law” in the sense of the legal system. Thus

I circumvent the usual vagueness and confusion relating to the subject matter of

various philosophical inquires into “law,” since they sometimes aim at “law” qua

idea, sometimes qua social institution, sometimes qua social practice, and some-

times qua legal norms. The working definition of legal systems adopted for the

purposes of this paper conceptualizes legal systems as systems of legal norms (in

the sense of the meanings of norms), and as systems that are by and large

efficacious.

Broadly speaking, there are natural kinds and human (or social) kinds. Artifact

kinds, no doubt, belong to the latter group. Natural kinds are groups of objects

(things, entities) naturally brought into existence, the grouping (sorting, ordering)

of which does not depend on humans, but on their natural common properties

(e.g., the atomic structure, DNA types). It may thus be assumed that natural objects

have essences and that it is possible to identify a set of necessary and sufficient

conditions for natural-kind membership. In contrast, artifact kinds are groups of

objects (artifacts) intentionally produced for some purpose, and the grouping of

these objects is not fixed by nature, but depends on human understanding and

agency. It may thus be said that artifacts do not have “real,” ontologically objective

essences,

1

but that their “nature” is constituted by the concepts and intentions of

artifact authors (creators, makers) and that these, in turn, determine what features

are relevant for an artifact to be a member of a certain artifact kind.

2

If one is to accept the claim that the “legal system” is an artifact kind, one has to

answer several important ontological, semantic, epistemological, psychological,

and methodological questions: concerning the nature of the legal system viewed as

an artifact kind, those of determining the reference of legal systems as artifact kinds

and our epistemic relationship to them, concerning the ways of classifying them in

kinds, and concerning the appropriate methodology for theorizing about them.

These questions will be discussed within the scope of a broader project I pursue,

which I refer to as the “artifact theory of law.”

Since this is a preliminary investigation, this paper aims at attempting an inquiry

into what the claim that “law” by its nature or character is an artifact would entail

and what, in the end, an artifact theory of law might look like. Before embarking

on such an inquiry, I will, however, first try to indicate at least some potential pay-

offs of the artifactual understanding of law (Section 2). In order to be able to

answer certain ontological questions concerning legal systems as artifact kinds, I

will outline in the following a general theory of artifacts (Section 3). I will do this

by exploring several theories of artifacts developed in general philosophy, drawing

1

The term real (ontologically objective essence) is understood as “real according to the criteria

for existencesuitable for members of natural kinds.”

2

For such a view, which nevertheless defends the reality of artifacts (and so their place in the

ontological inventory), see, e.g., Thomasson 2007. For the opposite view, according to which at

least some artifacts (those which are “copied kinds”) are “real” because they have mind-

independentnatures just like natural kinds,see, e.g., Elder 2007.

386 Luka Burazin

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