The Institutionality Of Legal Validity
Bibliographic Data
| ID | 10348997 |
|---|---|
| Authors | Kenneth M Ehrenberg (0000-0001-6875-8385, University of Surrey, corresponding author) |
| Year | 2018 |
| Volume | 100 |
| Issue | 2 |
| Pages | 277-301 |
| Publication date | 2018-07-17 |
| Peer Reviewed | Yes |
| Open Access | Yes |
| Type | ARTICLE |
| Venue | Philosophy and Phenomenological Research (JOURNAL) |
| Journal identifiers | ISSN: 0031-8205 • E-ISSN: 1933-1592 |
| Publisher | Wiley (PUBLISHER • GB) |
| DOI | 10.1111/phpr.12536 |
| OpenAlex | W2901588800 |
| Language | EN |
| Citations received | 2 |
| References cited | 38 |
The most influential theory of law in current analytic legal philosophy is legal positivism, which generally understands law to be a kind of institution. The most influential theory of institutions in current analytic social philosophy is that of John Searle. One would hope that the two theories are compatible, and in many ways they certainly are. But one incompatibility that still needs ironing out involves the relation of the social rule that undergirds the validity of any legal system (H.L.A. Hart's rule of recognition) to Searle's notion of codification: the idea that institutions need official declarations of their constitutive rules in order to enjoy the full benefits of institutions. The incompatibility arises from the fact that, in order to do its institutional work, the basic validity rule must be codified in Searle's sense—yet, given the particular role it has in legal positivism, it may be impossible to codify in the Searlean sense. In this paper I develop the incompatibility in detail, consider and reject consigning the basic validity rule to Searle's “Background” capacities that support institutional facts, and conclude that the best route to eliminating it while doing a minimum of damage to the two theories is to make a slight emendation to Searle's theory of institutions
Comparative law · Economics · Epistemology · Institution · Law and economics · Legal positivism · Legal profession · Legal realism · Order (exchange · Philosophy of law · Political science · Positivism · Relation (database · Sociology · Computer Science · Law · Legal principles and applications · Multicultural Socio-Legal Studies · Philosophy · Political Philosophy and Ethics
Making the Social World
Legality
Pure Theory of Law
The authority of lawEssays on law and morality
What is an institution?
Faces of Intention
Language and social ontology
How to Derive "Ought" From "Is
Deep Conventions
Searle's Social Reality
Convention
John Searle
The New Role of the Constitutive Rule
An Illuminating Exchange The Construction of Social Reality
Speech Acts
| Unique citing works | 2 |
|---|---|
| Citations per year | 1 |
| Citation span | 2024 - 2025 (2) |
| Citation velocity | recent |
| Highly cited | No |
| Citation types | Neutral: 2 |