Document Type

Book Chapter

Publication Date

2018

Source Publication

Law as an Artifact by Luka Burazin, Kenneth Einar Himma, and Corrado Roversi (eds.), Oxford University Press, 2018, pp.239-267.

Abstract

Brian Leiter has recently suggested that anyone who denied law's artifactuality, "the extravagance of their metaphysical commitments would.., be a subject for psychological, not philosophical investigation." There is a sense in which he is unquestionably right. If by artifact we mean the product of human effort, the claim is obviously true, indeed so obviously true that I do not know anyone who denies it. After some light interrogation it turns out that even some of the usual suspects have to be released without charges. It is accepted by John Finnis, who described law as "a cultural object, constructed, or ... posited by creative human choices, [which] is an instrument, a technique adopted for a moral purpose, and adopted because there is no other available way of agreeing over significant spans of time about precisely how to pursue the moral project well." Lon Fuller is not guilty either: he spoke of the lawyer as an "architect of social structures" and gave a central role in his writings, far more than his critics have, to the importance of institutional design to the traditional questions of jurisprudence. Even everyone's favorite punching bag, Ronald Dworkin, can plead innocence. Unless one is willing to argue that Finnis, Fuller, and Dworkin were all deeply confused about their own views, their examples show that the artifactuality of law, if understood as the claim that law is the product of human efforts, is an uncontentious claim.

Comments

Chapter 12 Copyrighted by Dan Priel 2018.

Download

Request a copy that is accessible using assistive technology (link opens in a new window)

Included in

Law Commons

Share

COinS