Institutional Legal Theory

This opens a new way to understand the so-called institutional legal theory. Those who were the first to ask “institutional questions” were G. E. M. Anscombe and, especially, J. R.

For MacCormick and Weinberger, institutions and institutional facts are products of constitutive rules (MacCormick and Weinberger 1986, 21; MacCormick 2007, 102). In their theory, MacCormick and Weinberger partly follow John Searle's ideas (MacCormick and Weinberger 1986, 21, 181; Searle 1996, 31, 113). A wooden piece on a chequered board is a simple “brute” fact. It becomes a chess piece due to a constitutive rule. A certain piece is the king, thus bringing into being the institution “king”. Social institutions and, through them, the whole social constitution is built on constitutive norms, but an institutional fact is not completely similar to a social fact. As John Searle emphasises, there are social facts that are not institutional, such as a tree falling on top of a car during a storm.

A legal “institution” is defined in a similar way as a chess piece turns out to be a king, another a queen, etc. According to MacCormick and Weinberger (1986, 21), the constitutive norms structure the lifespan of a legal institution, but not only them. According to these authors, there are five kinds of institutive norms: constitutive norms, rules of recognition, rules and standards of argumentation, rules of artic­ulation and legal injunctive rules of the first degree (MacCormick and Weinberger 1986,52). The first group of norms is constitutive sensu stricto, the latter four mostly focus on the functioning of the institution.

Marriage is an often-cited example of a legal institution, whereas the marriage between A and B is an institutional fact (Searle 1996, 79, 113). It articulates the institution. John and Jane might well live in a social micro-community, but they are not treated as spouses without a certain normative foundation. Norms constitute the institution as a marriage, defines its functions and marks its extinction. In this respect, marriage is an institution like football, in which certain brute facts are inter­preted with the help of the rules of the game. A physical person, N, moves his foot forward and makes the white leather-covered object move toward a frame protected by a net on three sides, in such a way that the moving object passes the person, M, standing in front of that frame. We say: Goal! In order to say this, we must be familiar with such concepts as player, kick, ball, penalty and goal.

To be exact, the examples were not entirely about the brute facts. Someone would say, I suppose, that we only have sensations interpreted as a foot, another as a leather-covered object, etc. However, it does not matter which way the notion of “brute fact” is defined. The institutionalism only emphasises the special ontological status of institutional facts, although the “bridge” from brute facts into institutional facts is inherently more complex than might be anticipated by the above-mentioned examples (Anscombe 1958, 69; Searle 1996, 34, 55; MacCormick and Weinberger 1986, 77).

In this respect, the ontological proposals presented by Sir Karl Popper do not give any final solution (Popper 1972, chapter 4). According to Popper, the physical world (world1) is comprised of physical objects and events, and the mental world (world2) is formed by consciousness and thoughts, whereas world3 is the home of human artefacts such as numbers, conceptual systems, qualities and certain cultural objects as symphonies. If we were to say, for example, that “Sibelius thought about his symphonies”, Sibelius would belong to world1, thinking to world2 and the sym­phonies to world3.

MacCormick and Weinberger seem to accept not only the existence of worlds 1 and 2, but also that of world3 (cfr Searle 1996, 127). For them, the legislation is an example of an institution belonging to world3, just like the marriage. On the other hand, because institutions always precede the institutional facts, individual statutes must be institutional facts constituted by the institution of legislation. However, what is the ontological status of the individual norms (statutes) that, in their turn, regulate the legislation as an institution? That question, formulated by Kaarlo Tuori, leads us into a vicious circle or infinite regress (Tuori 1997, 127). Therefore, the institutional theory, at least in the form represented by MacCormick and Weinberger, is incapable of providing an answer to basic questions on the ontology of law. What is still left open is the “true” ontological status of an institution.

H. L. A. Hart has a famous answer to this question: The rule of recognition. In more general terms, the rule articulates an institutional support for a legal norm (or legal order). The rule of recognition gives an institutional guarantee for a certain norm as regards its validity. Having an institutional support, the norm at issue does belong to the legal order. One who deals with law from an external point of view focuses his attention on whether people have accepted the institutional support as a basis for the legal order or not. This kind of statement concerning the acceptance of the rule is an empirical argument and can thus be true or false.

Hart's view is problematic in at least one respect.

In this study, the solution to the ontological problem with regards to law follows the lines formulated by John R. Searle (Searle 1996, 79, 149, 177). However, I have tried to continue a bit further and ask: What does it mean, in the end, that law exists as an institution? In this regard, Eerik Larspetz's conventionalist ontology seems to provide us with a more acceptable solution than those described above (Lagerspetz 1995, 3, 2009, 188). Lagerspetz's focus is on three kinds of rule-based systems: language, money and law. The last of those systems is, of course, most important for this study (Lagerspetz 1995, 5). Let us start, however, with some general problems.