Flaws and Virtues of An Artifact Theory of Law

• Author: Miguel Angel Garcia‐Godinez
• DOI: http://doi.org/10.1111/raju.12230
• Published date: 01 March 2019
• Date: 01 March 2019

© 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

Ratio Juris. Vol. 32 No. 1 Mar ch 2019 (117 –131)

Flaws and Virtues

of An Artifact Theory of Law

MIGUEL ANGEL GARCIA-GODINEZ

1. An Arti fact Theory of Law

It is now a truism that law is not natura lly given but artificia lly constructed by

human societies. A st raightforward reason to accept this is that law’s existence does

not depend exclusively on, nor is it reducible to, natural properties. On the contrary,

it is the product of collective human actions a nd attitudes. Based on th is, we may

justifiably assert t hat S is true:

(S) Law is socially constructed.

Yet S by itself does not explain the e xistence of law. The next step towards a clear

understanding of it is to elucidate the fu ndamental elements of law’s social construc-

tion. Let us call the tot ality of such elements the nature of law.

Hart’s (1994) social practices theory i s a paradigmatic case of a philosophical ex-

planation of (some of) those elements. In recent years, some other lega l philosophers,

e.g., MacCormick (2007), Marmor (2009), and Shapiro (2011), have raised important

criticisms of Hart ’s theory, and developed suggestive alternatives to it. They have

applied different accounts of collective intention ality to explain t he foundations of

law. For instance, MacCormick conceptualises t he nature of law as an inst itutional

normative order, Marmor as a constitutive convention, and Shapiro as a planni ng

activity based on joint intent ions. Burazin (2015; 2016; 2018) considers another option,

and suggests a novel explanation of the nature of law, which he calls an artifact the ory

of law.1

The main object ive of this paper is to evaluate this suggest ion. However, to be

fair, an important constra int must be considered. Burazin (2016, 386) states that, in

developing his artifact t heory of law, he understands law as legal syste m. He develops

1 Although the title of hi s 2016 paper only hints at considering the possibi lity of such a theory,

in several parts of it (e.g., Burazin 2016, 386, 397), as well as in his latest work (Burazin 2018,

113), he explicitly acknowledges having given at least a first outl ine. It is this outline, not the

mere hint of it, that interest s me here.