The institutional nature of law: an ontological analysis

This project develops an ontological analysis of law. It starts by characterising law as a layered practice constituted by the performance of various types of group activities at two levels: the social and the institutional. At the social level, it examines the conditions for social groups to create and sustain standards of conduct through normative social practices of recognition. At the institutional level, the investigation moves to the conditions required for legal organisations to carry out the legal activities that constitute a legal practice. These two levels are studied through the lenses of ontological accounts of social groups, group action, and collective intentionality. In the first part of the project, Hart’s Social Practice Theory of Law is discussed. His theory is used to present a social facts-based explanation of law’s reality and to introduce a fundamental element in the social construction of law: the internal point of view. Though this theory provides the groundwork for the analysis of certain essential properties of law, this project argues that it lacks an account of how legal organisations are created. To fill in this gap, this project considers next MacCormick’s Institutional Theory of Law. By discussing each of its main elements, it is shown that, while his theory improves on Hart’s by introducing an explanation of both how institutional groups come into existence and how they are involved in the creation and maintenance of an institutional normative order, it needs further development. Specifically, an account of the different forms of group structures and the participatory intentions involved in the performance of legal activities is needed. This is addressed in the second part of the project, which is dedicated to advancing a thorough analysis of the social construction of law based on the merits of these prominent legal theories. In the last three chapters of this thesis, novel accounts of collective intentionality and the ontology of social groups and group action are explored and used to provide the elements missing in MacCormick’s legal institutionalism. In particular, this project considers Thomasson’s work on the metaphysics of artifacts to address problems concerning the ontological status of social constructions; Tuomela’s theory of social practices and we-intentions to develop an explanation of how sociality is constructed out of group attitudes and group actions; Ludwig’s analysis of institutional agency to explain the constitutive elements based on which institutional groups perform rule-governed group activities; and Ritchie’s theory of organised groups to clarify the various kinds of group structures involved in law-activities. The result of this project is a fresh, interdisciplinary theory of the institutional nature of law