INSTITUTIONAL LEGAL FACTS

Transcription

1 INSTITUTIONAL LEGAL FACTS

2 Law and Philosophy Library VOLUME 18 Managing Editors ALAN MABE, Department of Philosophy, Florida State University, Tallahassee, Florida 32306, U.S.A. AULIS AARNIO, Department of Civil Law, University of Helsinki, Vuorikatu 5c, SF-OOlDO Helsinki, Finland CONRAD D. JOHNSONt, Department of Philosophy, University of Maryland, College Park, Maryland , U.S.A. Editorial Advisory Board ROBERT ALEXY, LehrstuhljUr Offentliches Recht und Rechtsphilosophie, Christian Albrechts-Universitiit, Kiel GEORGE P. FLETCHER, School of Law, Columbia University ERNESTO GARZeN VALDES, lnstitut fur Politikwissenschaft, Johannes Gutenberg Universitiit Mainz JOHN KLEINIG, Department of Law, Police Science and Criminal Justice Administration, John Jay College of Criminal Justice, City University of New York NICOLA LACEY, New College, Oxford University NEIL MacCORMICK, Centre for Criminology and the Social and Philosophical Study of Law, Faculty of Law, University of Edinburgh ALEKSANDER PECZENIK, Juridiska lnstitutionen, University of Lund NIGEL SIMMONDS, Corpus Christi College, Cambridge University ROBERT S. SUMMERS, School of Law, Cornell University ALICE ERH-SOON TA Y, Faculty of Law, University of Sydney ERNEST 1. WEINRIB, Faculty of Law, University of Toronto CARL WELLMAN, Department of Philosophy, Washington University The titles published in this series are listed at the end of this volume.

3 DICK W.P. RUITER Department of Public Administration and Public Policy, University oftwente, Enschede, The Netherlands INSTITUTIONAL LEGAL FACTS Legal Powers and their Effects Springer -Science+ Business Media, B. V.

4 Library of Congress Cataloging-in-Publication Data RUiter, D. W. P. Institutional legal facts: legal powers and their effects I by Dick W.P. Ruiter. p. cm. -- (Law and philosophy library: v. 18) Includes bibliographical references and indexes. 1. Legal positivism. 2. Social institutions. 3. Effectiveness and valiaity of law. 4. Social norms. I. Title. II. Series. K331.R '.1--dc ISBN ISBN (ebook) DOI / Printed on acid-free paper All Rights Reserved 1993 Springer Science+Business Media Dordrecht Originally published by Kluwer Academic Publishers in Softcover reprint of the hardcover 1st edition 1993 No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owner.

5 To my parents

6 TABLE OF CONTENTS ACKNOWLEDGMENTS PREFACE CHAPTER 1. THE CONCEPT OF LEGAL SYSTEMS I. Legal Validity 1. The Magic of Performatives 2. Interplay of Mention and Use 3. The Ultimate Ground of Legal Validity II. III. IV. Basic Norm versus Rule of Recognition 1. Kelsen's Basic Norm 2. Hart's Rule of Recognition 3. Validity versus Existence of Legal Systems 4. Presumed as Long as Accepted The Formal Structure of Legal Systems 1. A General Structure Formula 2. Legal Systems as Recursive Structures 3. The Status of Particular Structure Formulae Widening the Concept of Legal Systems 1. Traditional Limits of Legal Systems 2. Regulative and Constitutive Rules CHAPTER 2. SPEECH ACTS I. Major Concepts of Speech Act Theory 1. Introduction 2. Illocutionary Force and Propositional Content 3. Searle's Original Rules for the Use of Illocutionary Force 4. Illocutionary Points 5. Directions of Fit 6. Summary II. Declarative Speech Acts 1. Declarative Illocutionary Point and Institutions 2. Commissive and Imperative Speech Acts 3. Declarative-assertive Speech Acts 4. Declarative-expressive Speech Acts 5. Summary

7 viii III. IV. Commitments as Presentations 1. Presentations 2. Commitments 3. Presentations of an Order Presentations of Attempts and Purposes 1. Declarative-directive Speech Acts 2. Noncommittal Presentations of Purposes V. Classification of Declarative Speech Acts 1. Classification 2. Acts-in-the-law CHAPTER 3. ACTS IN THE LAW I. Testing the Classification of Declarative Speech Acts 1. The EEC-Treaty 2. Acts-in-the-law in the Treaty 3. Expressive Acts-in-the-law 4. Conclusions II. Norms of Competence 1. Norms of Competence and Acts-in-the-law 2. Acts-in-the-law and the Formal Structure of the Legal System 3. Competence-conferring Acts-in-the-law 4. Legal System and Reality CHAPTER 4. NEGATIVE ACTS IN THE LAW I. IIIocutionary Denegation 1. Permissive Speech Acts 2. Weak and Strong Permissions 3. Illocutionary Denegation of Acts-in-the-law II. Revocation and Invalidation 1. Cancellations and Confirmations 2. Revocatory and Consolidatory Acts-in-the-law 3. Invalidating and Endorsing Acts-in-the-law 4. Conclusions CHAPTER 5. LOGICAL RELATIONS BETWEEN LEGAL NORMS I. Legal Norms 1. The Square of Prescriptive Opposition 2. Assertive and Prescriptive Interpretations 3. Legal Norms of Conduct

8 ix I. Acts-in-the-Iaw 1. Families of Acts-in-the-law 2. Summary CHAPTER 6. GENERAL NORMS AND RULES I. General Norms and Rules of Conduct 1. Introduction 2. Ross's Classification 3. An Amended Classification 4. The Distinction Sorted Out 5. Conditional Legal Norms of Conduct 6. General Legal Norms of Conduct 7. Rules of Conduct 8. Survey II. III. General Norms and Rules 1. Introduction 2. Conditional Legal Norms 3. General Legal Norms 4. Legal Rules Abstract Acts-in-the-Iaw 1. Introduction 2. Abstract Declarative Acts-in-the-law 3. Abstract Hortatory Acts-in-the-law 4. Abstract Imperative Acts-in-the-Iaw 5. Abstract Assertive Acts-in-the-law 6. Abstract Competence-conferring Acts-in-the-law 7. Abstract Sanctioning Acts-in-the-law CHAPTER 7. LEGAL INSTITUTIONS I. From Institutional Legal Fact to Legal Institution 1. Legal Norms as Institutional Legal Facts 2. MacCormick's Legal Institutions 3. Weinberger's Institutions II. Institutions and Legal Systems 1. Designed Legal Institutions 2. Legal Institutions and Legal Principles 3. The Facts about Legal Systems APPENDIX A APPPENDIX B

9 x BIBLIOGRAPHY INDEX OF NAMES INDEX OF SUBJECTS

10 ACKNOWLEDGEMENTS The realization of this book is due to Ige Dekker's subtle efforts to help me overcome my reluctance to write in a foreign language. During my work on the manuscript, I received constant criticism and support from him, as well as from Huib de Jong and Wouter Werner. In the final stages their encouragement led me to venture into fields that I would certainly otherwise have avoided. From beginning to end Trudy de Vries assisted me with the manuscript. I am grateful to her for her fine work and personal commitment to the project. While preparing the final manuscript, both of us were able to draw on the remarkable skills of Ronald Leenes in solving a variety of word processing problems that go well beyond the capacities of ordinary human beings. Just as I had completed the first draft of the manuscript, Stanley L. Paulson inquired, innocently enough, about whether I was still working on problems concerning legal powers. In response, I sent him the draft. He kindly offered to revise my English, an offer that I gratefully accepted. It was the beginning of a stimulating exchange, and the exchange made it very clear to both of us that in legal theory problems of expression very often turn out to be conceptual problems. Owing to this intensive cooperation the manuscript was substantially improved. Of course, any remaining clumsiness in formulation is my own responsibility, a fact that is corroborated by the stylistic quality of Stanley's own writings. Finally, I want once again to thank my wife Christl for her patience and support, and for her confidence that I have something worth saying.

11 PREFACE The standard textbook examples of legal norms are obligations to do or to refrain from doing some act in certain circumstances. The examples are usually followed by accounts of the ways in which such norms of conduct attain legal validity. One of the accepted ways is based on the idea that legal validity derives from power-conferring norms. This category comprises norms empowering certain agents to issue norms of conduct, norms empowering certain agents to empower other agents to issue norms of conduct and so on, until a case, such as Kelsen's basic norm l or Hart's rule of recognition 2 is reached. Accounts of legal systems in this vein rest on a sound common sense notion of law as one of the phenomena regulating human conduct by means of prescriptions (others are, for example, custom and morals). The approach has the advantage of immediately confronting us with the core of any legal system: obligations, rights, liberties and their relations. Its disadvantage is that many factors that have come to play an increasingly important role within modern legal systems appear to resist analysis. For instance, problems arise in classifying norms that serve as the foundations of various organizational units. Traditional accounts are prone to cast such norms into an ill-fitting analytical mould, since they are neither norms of conduct nor power-conferring norms. Legal norms at the basis of organizational units are indeed the most salient counter-examples to the contention that law consists merely of two types of norm. This does not mean, however, that the riddle can be solved by simply introducing a third type. Any close inspection of modern legal systems will yield a diversity of counter-examples: norms assigning qualities to persons or things ('conscientious objector', 'nature reserve'); norms consisting of standards for measuring or calculating space, time, or value ('db(a)', 'pollution equivalents', 'study vouchers'); norms subsuming various aspects of reality under one legal concept ('the Environment', 'Social Security', 'Health Care'). From a traditional point of view this by no means exhaustive presentation of unclassified norms is highly embarrassing. For in spite of their similarity to norms of the canonical type with regard to their legal I Cf. H. Kelsen, Pure Theory of Law, trans!' from the second German edition (1960), Berkeley, 1967 (repr. 1978), 8. 2 H.L.A. Hart, The Concept of Law, Oxford, 1961,92.

12 2 PREFACE functions, they are plainly different from the latter. Understood from the standpoint of the classical approach, they are rendered innocuous by treating them as ancillary legal devices - legal definitions, fragments of norms or dependent norms - or they are reduced to the canonical types by means that amount to misrepresentation. Both strategies rest on the a priori assumption that law ultimately consists of mandatory norms. This assumption, however, does not hold when it is confronted with the actual content of the legal systems surrounding us. Hence, it appears appropriate to choose a different point of view for analysing legal systems. The new analytic point of departure involves an inversion of the problem at hand. Since the classical approach focuses on norms of conduct, legal validity is primarily conceived of as a notion regarding their status. In the approach we propose to take, the primary question is what phenomena can attain legal validity in general. On this account, norms of conduct are but one class of all phenomena to be investigated--to be sure, an important class. An important clue for solving the inverted problem is the distinction between 'brute facts' and 'institutional facts' --first observed in analytic linguistic philosophy and subsequently adopted by legal scientists. 3 Most of the 'facts' of modern society are no longer physical phenomena, such as tables, seats, rain and hunger, but abstract, socially defined entities or events, such as museums, soccer games, speed limits, borders, counties, money, government grants and social security. It is true that such entities and events have physical substrates. However, their essence is not crudely physical but above all the result of human qualification. 4 Weare able to say that a certain soccer competition consists of a number of games in the same way that we say, for example, that cats have four legs--for a certain combination of physical entities and events, the combination counts as a soccer game. One of the fundamental questions of modern society is how groups of human beings perform the conjuring trick of creating facts and what limits they must observe here. One notion in particular makes it likely that some 3 J.R Searle, Speech Acts, Cambridge, 1969, p Cf. D. N. MacCormick and O. Weinberger, An Institutional Theory of Law, Dordrecht, 1986,9,49-76, O. Weinberger, Law, Institution and Legal Politics, Dordrecht, 1991, 4: 'The objects of our experience have their place in our image of the world not only according to their physical properties; they are also defined according to their institutional attributes, depending on their function in our environment. In other words: ontology perceives objects not merely in their brute-fact-relations, but it represents a world view comprising among its elements institutional facts, too.'

13 PREFACE 3 answers will be found within the realm of the law. I have in mind the notion that an 'institutional' fact exists only if it is valid as an instance of some valid fact-type. One can introduce the fact that a particular soccer game is being played, provided that the physical event that takes place is valid owing to its being an instance of the valid fact-type 'soccer'. Of course, further questions arise concerning the validity of such fact-types. Answers to such questions can be given on the basis of the notion of 'constitutive rules'.5 Modem societies are founded on the basis of several kinds of constitutive rules. They make it possible to treat forms of behaviour of human beings and relations between them as distinct entities with their own names. Using these names we are able to perform operations on them, as if they were physical objects. We can count them, subject them to arithmetic calculations, make valuations of them and so on. One of the basic contentions of this study is that most societal facts are institutional in character, meaning, in 1.R. Searle's words, that their existence presupposes the existence of certain human institutions, such institutions being in tum (systems of) constitutive rule(s) 'of the form "X counts as Y in context C".'6 By no means all constitutive rules that underlie institutional facts are legal in nature. But legally valid phenomena for their part are institutional facts, for their existence can be recognized only on the basis of some legal norm warranting their validity. On this view, legal norms of conduct are institutional facts of a special type. Important as this type may be within the domain of the law, it is only one type among others. Moreover, the various types of institutional legal facts appear to be interrelated in ways deserving of closer scrutiny. These observations, and the puzzles they give rise to, dictate the programme of this study. Searle (1969), 51-52; Alf Ross, Directives and Norms, London, 1968, Searle (1969),