Abstract
The study attempts to explain the nature of the practice of norm-applying officials (for brevity’s sake, “legal practice”) in any relatively complex legal system. Since there are several theories that focus on that issue, and given that these theories claim that legal practice should be understood as having the same structure as other practices with which we are familiar (such as conventional practices, the practice that obtains when there is a social rule, or collective intentional practices), the chapter proposes three tests to assess the adequacy of such theories. First, the theory should give an adequate account of the favoured category of practices. Thus, if the theory claims that legal practice should be understood as a conventional practice, it should present a good account of conventional practices. Second, the theory should explain the fact that legal practice is institutional in character. In particular, it should explain that members of the institution (officials) believe that they have certain duties qua members of the institution. To deploy this test, a preliminary analysis of institutions is proposed. Third, the theory should explain disagreement among officials about their institutional duties. In particular, disagreement at the level of the criteria of legality should be explained. To deploy this test, certain responses in the literature that attempt to accommodate this sort of disagreement are rejected, and an actual example of disagreement about the criteria is proposed as a test-case.
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- 1.
MacCormick also notices that we use the term “institution” to refer, in some cases, to certain type of groups (which he labels “social institutions”) and, in other cases, to institutions such as the institution of contract, money, etc. He also acknowledges that, if there is law, there must be an institution of the first type. But he is primarily concerned with providing an analysis of institutions of the second type. MacCormick and Weinberger (1986, esp. 25, 55–56, 74).
- 2.
The term is also used as a theoretical construct in sociology that refers, inter alia, to: (a) institutions such as the institution of money, contract, etc; thus, it is stated that institutions are “social practices that are regularly and continuously repeated, are sanctioned and maintained by social norms and have a major significance in the social structure” (Abercrombie 1988, 124); or (b) the two types of institution I mentioned and perhaps others types of institution as well; thus, it is claimed that “institutions consist of cognitive, normative, and regulative structures and activities that provide stability and meaning to social behaviour” (Scott 1977, 33); or (c) any type of phenomenon that is, broadly speaking, of sociological interest; thus communities, society, organizations, groups, social activities and social practices all form “the institutional world” and are referred to as “institutional forms” (Morton 1998, Chapters 1 and 2).
- 3.
Unless you are using the notion in a different sense, such as a “cognitive, normative, and regulative structure and activity that provide stability and meaning to social behaviour” (see n 18 above).
- 4.
You may object that the pre-analytic characterization mentioned above, when claiming that members think of the activity as purporting to be valuable in relation either to themselves or to non-members, and always to some aspect of the life of the community, ignores the case of activities that purport to be valuable simpliciter. But my claim does not ignore that. It does not deny that some activities may be pursued for their own sake, because they are thought to be, in and of themselves, valuable. It only emphasizes that members think that either themselves or non-members, and always the community, will be those who participate in the value that is being promoted (even if it is a value pursued for its own sake). There are no institutions whose members have no view as to who will participate in the value that is thought to be promoted. Or, at any rate, I cannot think of an example.
- 5.
Cf PRN 213.
- 6.
Acting qua statements where the “ought to do A in C” only brings in the idea that there is an undefeated reason (not a duty) to do A in C have the same form. For instance, “qua salesman you ought to be competitive when trading” normally means “as an individual interested in trading to obtain a profit, you ought to be competitive”. Here the statement is not employed to claim that the salesman is under any duty but that, insofar as interested in trading for a profit, he has, other things being equal, an undefeated reason to be competitive.
- 7.
To make these assumptions I shall rely heavily on Raz’s general conception of reasons and duties, as outlined in PRN and PO, putting technicalities and issues of detail aside.
- 8.
See PRN Chapter 1 (on reasons in general), 25–26 (on conflict), 27, 187, 202 (on cancellation), and PO 223 (on duties).
- 9.
This is Raz’s (1989, 1153, 1155–1156) general approach to rules: PO 221; PRN 187. For his detailed analysis: PRN Chapters 2, 3 and Postscript.
- 10.
This presupposes that the beliefs are not absurd. The theories we shall assess, I think, presuppose that too. So this cuts no ice in our assessment of them.
- 11.
The theories we shall assess would, I think, also accept this. For instance, they would reject an account of legal practice that claims that its structure is that of there being a mere habit among officials of doing A, on the ground that, if officials believed that they have a duty to do A qua participants in such practice (i.e. qua individuals who satisfy the property of doing A habitually), these beliefs would be senseless; and the theories would claim that these beliefs would be senseless because there is no plausible normative consideration according to which, if there is the habit of doing A, one should do A. Of course, it is difficult to say precisely when a normative consideration is plausible or implausible. But there is no need to deal with that issue here, for there are undoubtedly clear cases where the distinction applies (such as the one I have just mentioned), and the argument of the book will rely on cases of that sort.
- 12.
TRS 49–50.
- 13.
TRS 53.
- 14.
TRS 53.
- 15.
TRS 54.
- 16.
TRS 58.
- 17.
In Dworkin (1986) the objection became more sophisticated, but we need not focus on these refinements here.
- 18.
Coleman (2001b, 130–131; 2001a, 116–117).
- 19.
For the best description of the state of the dispute, see Rivera and Legarre (2006, 1333–1352; 2009, La Ley 1–6).
- 20.
TVNL 258–265.
- 21.
TVNL 261–265.
- 22.
Raz then goes on to propose a more detailed refutation of the objection, in terms of the complexity and non transparency of criterial explanations and in terms of the relatively interdependence of concepts. The first argument suggests that we have to deny the view that because the explanation of concepts is judged by their faithfulness to the shared rules governing their use, such explanations are so transparent that they leave little room for doubt about their correctness (TVNLP 266). And the second argument suggests that there can be disagreements about concepts like “just war”, assuming that they can be criterially explained and assuming that proportionality of the harm inflicted is one of the criteria for something being a “just war”, for people might have the same concept and yet be at a loss as to how to compare the severity of various harms, because the latter is not criterially explicable (TVNLP 269–270). But these two arguments presuppose the rejection of individualism (he claims that this – the non-individualistic view of criterial explanations – “in and of itself does not explain the possibility of theoretically interesting disputes about such criteria; to do that we have to add other elements to the rejection of individualism” (TVNLP 265)). In other words, here there is no disagreement as to what the criteria are. Accordingly, the two additional arguments are not useful to avoid the objection.
References
Dworkin, Ronald. Law’s Empire. Cambridge: Harvard University Press, 1986
MacCormick, Neil, and O Weinberger. An Institutional Theory of Law. Dordrecht: Reidel Publishing Company, 1986
Abercrombie, Nicholas. The Penguin Dictionary of Sociology (2nd ed). London: Penguin, 1988
Morton, Peter. An Institutional Theory of Law. Oxford: Clarendon Press, 1998
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Sánchez Brigido, R.E. (2010). Three Tests. In: Groups, Rules and Legal Practice. Law and Philosophy Library, vol 89. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-8770-6_1
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