The Institutionality of Legal Validity

Philosophy and Phenomenological Research (Forthcoming)

44 Pages Posted: 20 Feb 2007 Last revised: 18 Jun 2018

Date Written: 2018


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.

Keywords: Institutional facts, validity rule, rule of recognition, jurisprudence, philosophy of law, John Searle, H.L.A. Hart, codification, social facts, convention, constitutive rules, secondary rules, ontology of law, social ontology

Suggested Citation

Ehrenberg, Kenneth M., The Institutionality of Legal Validity (2018). Philosophy and Phenomenological Research (Forthcoming), Available at SSRN: or

Kenneth M. Ehrenberg (Contact Author)

University of Surrey - School of Law ( email )

United Kingdom

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