Skip to main content

Advertisement

SpringerLink
Log in

The Institutionalisation of the Basic Validity Rule

  • Published:
Law and Philosophy Aims and scope Submit manuscript

Abstract

In a recent contribution to legal ontology, Kenneth Ehrenberg identifies a puzzle concerning the basic validity rule of legal systems: If formal institutions require a codified foundational constitutive rule, then legal systems cannot be formal institutions, since their foundational constitutive rule is necessarily an uncodified basic validity rule. To solve this puzzle, Ehrenberg suggests taking this rule as ‘a foundational and self-identifying institutional fact’. Here, I challenge his solution and the very existence of this puzzle. By arguing, contra Ehrenberg, that the basic validity rule is not the foundational constitutive rule of a legal system, but only the foundational constitutive rule of legal validity; that its codification in fact contributes towards the institutionalisation of a legal system; and that the true foundational constitutive rule of a legal system is the formal group structure of the higher-constitutional organisations, I submit an alternative account of the institutional nature of legal systems.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. Kenneth Ehrenberg, ‘The Institutionality of Legal Validity’, Philosophy and Phenomenological Research 100(2) (2020): p. 277.

  2. Ibid., p. 279.

  3. Ibid., p. 280.

  4. Of course, whether something counts as a formal institution or not, may be regarded as inconsequential. After all, as an anonymous reviewer suggested, ‘formal institution’ is a technical philosophical term, with not so much relevance for lawyers and legal officials. However, we should not forget that the use of technical terms may have more than merely terminological import. For example, although the notion of ‘logical validity’ is highly technical, its use or application in argumentative contexts is extremely relevant, viz., it expresses the adequacy of an argument to a minimum set of logical rules. In a similar way, to say of legal systems that they are formal institutions or not expresses whether they satisfy certain conditions; particularly, (1) that the fundamental status function (e.g., legal validity) can be imposed on types of objects and events, and not only on tokens thereof; (2) that there exists a systematic relationship amongst those objects and events (e.g., the Parliament has the power to create legal rules and so, a new legal institution, which in turn may result in new legal rights and obligations for the community, etc); and (3) that the required language to express the institutional reality is supplied with an official grammar, i.e., explicit rules for the application of legal terms (e.g., ‘marriage’, ‘legislation’, ‘jurisdiction’, etc). On these, and some other aspects of formal institutions, see John Searle, The Construction of Social Reality (London: Penguin Books, 1995), pp. 97–99.

  5. Ehrenberg, ‘The Institutionality of Legal Validity’, p. 298.

  6. Ibid.

  7. Ibid., p. 285.

  8. HLA Hart, The Concept of Law 3rd edn (Oxford: Oxford University Press, 2012), pp. 100–110, 250–254.

  9. Searle, The Construction of Social Reality, pp. 113–115 (see also Ch 1 for a thorough analysis of ‘collective acceptance’, ‘constitutive rule’, and ‘status function’).

  10. Ehrenberg, ‘The Institutionality of Legal Validity’, p. 279.

  11. Ibid.

  12. Ibid. Famously, Searle has defended the view that there is a way to derive an ‘ought’ (a normative statement) from an ‘is’ (a descriptive statement) via constitutive rules (see John Searle, ‘How to Derive “Ought” from “Is”’, The Philosophical Review 73 (1964): 43–58 and Speech Acts: An Essay in the Philosophy of Language (New York: Cambridge University Press, 1969), Ch 8). His account, however, has been severely criticised by a number of important philosophers. MacCormick and Weinberger, for example, argue that for Searle’s constitutive rule to be a genuine rule, it must be addressed to some (collective) agent, who is meant to act according to it (Neil MacCormick and Ota Weinberger, An Institutional Theory of Law. New Approaches to Legal Positivism (Dordrecht: D. Reidel Publishing Company, 1986), pp. 21–24). As such, a constitutive rule has the form ‘A ought to make it the case that X counts as Y in C’ (instead of simply ‘X counts as Y in C’). Yet, as this re-formulation makes plain, the genuine constitutive rule contains an ‘ought’ that Searle’s theory of institutional facts leaves unexplained. Though I consider this criticism well-founded, I shall not engage with it any further. In any case, although Ehrenberg himself does not agree with Searle’s argument (as mentioned to me through personal communication), since he claims that his institutional theory ‘holds out the promise of answering […] how to get from the fact of collective acceptance […] to the normativity of law’, I leave an elaboration of this to him.

  13. Hart, The Concept of Law, pp. 80–81.

  14. Searle, The Construction of Social Reality, pp. 84–85.

  15. Searle, The Construction of Social Reality, pp. 87–90.

  16. Ehrenberg, ‘The Institutionality of Legal Validity’, p. 278.

  17. Ibid., p. 279.

  18. Ibid., p. 285.

  19. Ibid.

  20. Ibid., pp. 285–286.

  21. Ibid., p. 298.

  22. Ibid.

  23. Ibid.

  24. Ibid.

  25. Ibid. (emphasis added).

  26. See ibid.

  27. Ibid. (emphasis added).

  28. Ibid., p. 297.

  29. Ibid. (emphasis added).

  30. Ibid.

  31. I can anticipate an objection here: In various places, Ehrenberg seems to believe that a social fact is institutional if (and only if) the constitutive rule by which a corresponding status function is assigned is collectively accepted (see ibid., p. 284). So, one would simply say that the basic validity rule is institutional if (and only if) it is collectively accepted. There are some problems with this kind of response, though. For one, if collective acceptance were all to institutionality, then this would make irrelevant the requirement of codification. But the truth is that, for Searle, there are two kinds of institutional facts, viz., those whose nature involves formal institutions, and those whose nature involves only informal institutions (while both necessarily involve collective acceptance, constitutive rules, and status functions). Since legal facts belong to the first category, what we want to explain is what makes legal systems formal (rather than informal) institutions. For Searle, again, the key element is codification. Hence, ignoring codification and focusing only on collective acceptance would not do.

  32. Ibid., p. 297.

  33. Ibid., p. 282, n 24.

  34. Searle, The Construction of Social Reality, p. 26.

  35. Ibid., pp. 27, 38.

  36. Ibid., pp. 113–115. See also John Searle, ‘What is an Institution?’, Journal of Institutional Economics 1(1) (2005): pp. 1–22.

  37. Searle, The Construction of Social Reality, p. 46.

  38. Ehrenberg, ‘The Institutionality of Legal Validity’, p. 285.

  39. Searle, The Construction of Social Reality, p. 88.

  40. Ibid.

  41. Ibid.

  42. Ehrenberg, ‘The Institutionality of Legal Validity’, p. 289.

  43. Ibid., p. 280.

  44. Ibid., p. 298.

  45. Luka Burazin, ‘The Rule of Recognition and the Emergence of a Legal System’, Revus 27 (2015): p. 116.

  46. Ibid., p. 120.

  47. I have presented a preliminary view of this in Miguel Garcia-Godinez, The Institutional Nature of Law: An Ontological Analysis (Glasgow: PhD Thesis, 2020).

  48. Burazin, ‘The Rule of Recognition and the Emergence of a Legal System’, p. 115.

  49. This does not mean, though, that I fully endorse Burazin’s view. For one thing, I do not believe that legal systems are ‘emerging’ entities; instead, I think that they are socially constructed (and so, we can account for their existence and persistence by explaining the constitutive elements or building blocks involved in their intentional creation and maintenance). Secondly, I resist his artifact theory of law (see Miguel Garcia-Godinez, ‘Flaws and Virtues of An Artifact Theory of Law’, Ratio Juris 32(1) (2019): pp. 117–131, where I have argued that law is not an artifact of any kind, as Burazin insists, but an institutional practice, consisting in the performance of various types of group activities).

  50. Ibid., p. 116.

  51. Ibid.

  52. Ibid., p. 118.

  53. Ibid.

  54. Ibid.

  55. Ibid.

  56. Ibid., p. 119.

  57. Ibid., p. 120.

  58. Hart, The Concept of Law, p. 115.

  59. Burazin, ‘The Rule of Recognition and the Emergence of a Legal System’, p. 120.

  60. Ibid.

  61. Ibid.

  62. Ibid.

  63. Scott Shapiro, Legality (New York: Harvard University Press, 2011), p. 6.

  64. Miguel Garcia-Godinez, ‘What Are Institutional Groups?’, in Miguel Garcia-Godinez, Rachael Mellin & Raimo Tuomela (eds.), Social Ontology, Normativity and Law (Berlin: De Gruyter, 2020), pp. 39–62.

  65. See Katherine Ritchie, ‘What Are Groups?’, Philosophical Studies 166(2) (2013): pp. 257–72; ‘The Metaphysics of Social Groups’, Philosophy Compass 10(5) (2015): pp. 310–21; and ‘Social Structures and the Ontology of Social Groups’, Philosophy and Phenomenological Research 100(2) (2020): pp. 402–24.

  66. Ritchie, ‘The Metaphysics of Social Groups’, p. 316.

  67. Garcia-Godinez, ‘What Are Institutional Groups?’.

  68. By ‘group ethos’ I mean not only the general goal(s) of the group, but also the most general principles that are meant to govern the group activities. On this, see (Raimo Tuomela, Social Ontology. Collective Intentionality and Group Agents (New York: Oxford University Press, 2013), p. 14).

  69. By ‘normative powers’ I mean powers conferred by rules (see Neil MacCormick and Joseph Raz, ‘Voluntary Obligations and Normative Powers’, Proceedings of the Aristotelian Society 46 (1972): p. 62).

  70. This recycles an example from Garcia-Godinez, ‘What Are Institutional Groups?’, p. 47.

  71. I provide a thorough discussion of this in Garcia-Godinez, The Institutional Nature of Law.

  72. I follow Tuomela’s characterisation of operative members here (see Tuomela, Social Ontology, pp. 86–87.).

  73. Someone may be tempted to say that, since this authority is backed up by a certain form of collective recognition, this is then the true foundational constitutive element of a legal system. But this is inaccurate. This form of recognition (which can be granted explicitly through a certain procedure, e.g., an election, or simply being based on common attitudes amongst community members towards their leaders) only grounds the constituent power (i.e., the power to create a constitution) but not the power to create a legal system (which corresponds exclusively to the constitutional organisations). At any rate, I take this to be consistent with MacCormick’s claim that ‘custom is the fundamental grounding of any stable and lasting constitution’ (MacCormick and Weinberger, An Institutional Theory of Law, p. 185).

  74. Neil MacCormick, ‘Norms, Institutions, and Institutional Facts’, Law and Philosophy 17 (1998): pp. 328–329.

  75. For a detailed analysis of constitutions (and their role in the establishment of constitutional states), see Nicholas Barber, The Constitutional State (Oxford: Oxford University Press, 2010).

  76. MacCormick, ‘Norms, Institutions, and Institutional Facts’, p. 326.

  77. For an example of how institutive, consequential, and terminative rules set up the relevant functions of the highest institutional agencies, see Neil MacCormick, Institutions of Law: An Essay in Legal Theory (New York: Oxford University Press, 2007), pp. 49–50. While presenting his critical reading of Hart’s theory of law, MacCormick also highlights the fundamental character of the constitution and how it is meant to contain the provisions for deciding who occupies an official role within the institutional structure of modern constitutional states (Neil MacCormick, HLA Hart 2nd edn (Stanford: Stanford University Press, 2008), p. 139).

  78. MacCormick, ‘Norms, Institutions, and Institutional Facts’, p. 323.

  79. Ibid., p. 327.

  80. See MacCormick, Institutions of Law, pp. 45–49.

  81. For a general discussion of this kind of commitment in terms of ‘role obligations’, see Michael Hardimon, ‘Role Obligations’, The Journal of Philosophy 91(7) (1994): pp. 333–363.

  82. MacCormick, Institutions of Law, pp. 51–53, 60.

  83. Kirk Ludwig, ‘The Social Construction of Legal Norms’, in Miguel Garcia-Godinez, Rachael Mellin & Raimo Tuomela (eds.), Social Ontology, Normativity and Law (Berlin: De Gruyter, 2020), pp. 179–208.

  84. A proxy agent, as Ludwig has thoroughly discussed (especially in Kirk Ludwig, ‘Proxy Agency in Collective Action’, Noûs 48(1) (2014): pp. 75–105), is an individual or group that holds a status role in virtue of which she or it can contribute towards the realisation of a certain action that can be correctly attributed to the authorising group (i.e., the group in the name of which the proxy acts). Since this authorisation is constitutive of the status role, the proxy agent contributes constitutively (and not merely causally) towards the realisation of the group action.

  85. Ibid., p. 96.

  86. Chiara Cordelli, The Privatized State (Princeton: Princeton University Press, 2020).

  87. See MacCormick, Institutions of Law, p. 46.

  88. Ibid.

  89. See MacCormick, Institutions of Law, p. 49.

  90. Ibid. (emphasis added).

  91. MacCormick, ‘Norms, Institutions, and Institutional Facts’, pp. 314–316.

  92. Compare this also to his statement about the institutionalisation of informal normative orders, e.g., queueing (ibid., pp. 310–314; and MacCormick, Institutions of Law, pp. 21–33).

  93. See Matthew Kramer, H.L.A. Hart (Cambridge: Polity, 2018), p. 81; Scott Shapiro, ‘What is the Rule of Recognition (and Does it Exist)?’, in Matthew Adler & Kenneth Himma (eds), The Rule of Recognition and the U. S. Constitution (New York: Oxford University Press, 2009), pp. 235–268; and MacCormick, HLA Hart, pp. 32–33.

  94. Hart, The Concept of Law, pp. 91–99.

  95. Ibid., pp. 92–94.

  96. Ibid., pp. 100–101.

  97. Ibid., pp. 108, 256.

  98. Ibid., pp. 109, 256.

  99. Kent Greenwalt, ‘The Rule of Recognition and the Constitution’, Michigan Law Review 85(4) (1987): pp. 624, 638; Sean Coyle, ‘Practices and the Rule of Recognition’, Law and Philosophy 25 (2006): pp. 438–439; Shapiro, ‘What is the Rule of Recognition (and Does it Exist)?’, p. 241; Kramer, H.L.A. Hart, pp. 79–80, 83; and Neil MacCormick, ‘The Concept of Law and “The Concept of Law”’, Oxford Journal of Legal Studies 14(1) (1994): p. 14 and HLA Hart, pp. 132, 141.

  100. Hart, The Concept of Law, p. 116.

  101. Ibid., pp. 115, 256.

  102. Ibid., pp. 255–256, 267. Conventionalist interpretations of the basic validity rule have been provided, though not all in the same terms, by Andrei Marmor, ‘Legal Conventionalism’, Legal Theory 4 (1998): pp. 509–531; Jules Coleman, ‘Incorporationism, Conventionality and the Practical Difference Thesis’, in Jules Coleman (ed), Hart’s Postscript. Essays on the Postscript to ‘The Concept of Law’ (New York: Oxford University Press, 2001), pp. 99–148; and Gerald Postema, ‘Coordination and convention at the foundation of law’, Journal of Legal Studies 11(1) (1982): pp. 165–203.

  103. See Hart, The Concept of Law, pp. 147–154; and Kramer, H.L.A. Hart, p. 75.

  104. Hart, The Concept of Law, p. 117; MacCormick, HLA Hart, p. 143; and Kramer, H.L.A. Hart, pp. 92–97.

  105. Ehrenberg, ‘The Institutionality of Legal Validity’, p. 279.

Acknowledgements

I am grateful to Ken Ehrenberg, Luka Burazin, and Rachael Mellin for helpful and insightful comments on an earlier draft. Thanks also to the Law & Philosophy anonymous reviewers and editors.

Author information

Authors and Affiliations

  1. Instituto de Investigaciones Filosóficas, Universidad Nacional Autónoma de México, Mexico City, Mexico

    Miguel Garcia-Godinez

Authors
  1. Miguel Garcia-Godinez
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Miguel Garcia-Godinez.

Additional information

Publisher's Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Reprints and permissions

About this article

Check for updates. Verify currency and authenticity via CrossMark

Cite this article

Garcia-Godinez, M. The Institutionalisation of the Basic Validity Rule. Law and Philos 42, 115–144 (2023). https://doi.org/10.1007/s10982-022-09453-x

Download citation

  • Accepted:

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s10982-022-09453-x

Search

Navigation