Law as an Artifact Kind

Monash University Law Review, Vol. 40, No. 3, pp. 737-757, 2014

University of Queensland TC Beirne School of Law Research Paper No. 15-61

21 Pages Posted: 21 May 2015

See all articles by Jonathan Crowe

Jonathan Crowe

University of Southern Queensland - School of Law and Justice

Date Written: May 20, 2015

Abstract

It is commonly stated that law is an artifact, but this claim is rarely explicitly defended. This article submits this statement to closer examination. I argue that law is not straightforwardly covered by the standard philosophical account of artifacts, since not all laws have authors. However, it is possible to extend the account to include it. I then develop an analysis of law as an artifact kind. I contend that law is best regarded as a special type of artifact, which I call an ‘institutional artifact’. On this view, something qualifies as law only if, roughly, it is collectively recognised as law and is constitutively capable of fulfilling law’s function as an artifact. I argue that law’s function as an artifact is to serve as a deontic marker by creating a sense of social obligation. A putative law that is incapable of performing that function for reasons of form or content therefore fails as law, while a law that is not minimally adapted to that function is legally defective.

Keywords: Law, artifacts, natural law, invalidity, defectiveness, Searle, Finnis

Suggested Citation

Crowe, Jonathan, Law as an Artifact Kind (May 20, 2015). Monash University Law Review, Vol. 40, No. 3, pp. 737-757, 2014, University of Queensland TC Beirne School of Law Research Paper No. 15-61, Available at SSRN: https://ssrn.com/abstract=2608777

Jonathan Crowe (Contact Author)

University of Southern Queensland - School of Law and Justice ( email )

West Street
Toowoomba, Queensland 4350
Australia

HOME PAGE: http://jonathancrowe.org/

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