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We expect some explicit collective intention to codify the basic rule in order to lend it its institutionality. Institutions, as kinds of social objects, do this by articulating the normative contours of what actions meet the criteria of membership to be counted as exemplars of that practice or activity.

This echoes the notion shared by some positivists that the basic validity rules are really just a description of shared practices among the legal officials, a description of what the group of officials takes to be valid that they internally adopt as reasons for conforming their validity decisions to those descriptions.

But if this formula is in reality simply a description of a practice and not the psychologically explicit object of anyone's intention although its application is intentional , then it is difficult to see how institutionalization of the basic validity rule is possible.

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Recall Searle's claim that for a social fact to be institutional at least informally , the constitutive rule must be capable of explicit codification. So we might consider it enough that the above formula could be made explicit, even if not legally codified. But then a more serious problem arises. These theorists are, of course, explaining the system from an external point of view.

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The content of the basic validity rule is not generally psychologically available to the officials, even if it is a perfectly accurate description of what those officials are doing. Hence this particular constitutive rule is not capable of explicit codification since those that do the codifying the officials do not generally have access to any formulation of the rule. Yet none of them seem open to us at the moment. That context itself is a creation of the legal system and hence an institutional fact.

We have good reasons to think that the basic validity rule is an institutional fact; we just cannot use Searle's theory to explain it as such. So the basic validity rule does not fit any of Searle's categories. Judges believe themselves bound by their constitution to apply the relevant sources of law, not that they are following a more basic rule that tells them to look to their constitution to find the relevant sources. Much theorizing about the world around us carries with it the implicit claim that people are engaging in behaviors or holding beliefs without fully realizing their theoretical characteristics.

In Searle's use of collective intentionality, however, we have a claim that at least in some cases people must be aware of the status they collectively intend in their assignment of function. Cocktail parties are not cocktail parties if we do not collectively intend them to be cocktail parties. Pieces of paper cannot function as money if there aren't at least some officials who collectively intend for them to be used as money.


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The problem we have been examining does not arise because the officials fail to think consciously of the basic validity rule as a basic validity rule. Rather, it arises because the officials do not generally have sufficient intentionality to treat the description of their validity practices as a rule for determining validity. For them it continues to be a practice that they follow because others do so; there is no recognition of the practice as counting as something else. Searle would be the first to remind us of the linguistic and institutional division of labor.

One might therefore think that the highest ranking legal officials, who pass on issues of validity, are relying on the expertise of philosophers in order to intend successfully and collectively that their basic norms fix the criteria of legal validity for their legal system. This cannot be a satisfactory answer. First of all, when we rely on the scientists to do the background scientific work for us to speak more accurately about the world, those scientists actually have to endorse the scientific propositions that lie behind our statements.

When philosophers talk about legal officials accepting basic validity rules, there is no sense in which the philosophers themselves are thereby accepting any particular rules as setting the standards for legal validity. For criticism of this approach see generally Dworkin The highest court in the land does not believe itself to be relying on the theoretical work of philosophers in order to pick out successfully which laws are valid. Many of the points I have just noted about the basic validity rule do seem to reflect precisely the characteristics of the Background that Searle details: a disposition to behave in conformity with a constitutive rule, thereby collectively imposing the status function upon that rule, without the normally requisite mental representation of the rule.

There might be some initial plausibility in this move since, as the most basic rule, the basic validity rule is an enabling condition for the determination of all other legal institutions within that system, precisely what we expect from Searle's Background. The Background explains how the constitutive rules deontic powers of an institution can cause conforming behavior in participants without them being directly aware of those rules Searle , What is true of language itself a very basic institution is then true for intentional states more generally. Instead, we are conditioned to behave in conformity with the rules that constitute our social and institutional structures by the responses of others.

For Hart, what constitutes the evidence that a social norm is in place and, for practice theory rules, partially constitutes the norms themselves are the public responses of praise and blame , However, there are serious problems in consigning the basic validity rule to Searle's Background that would need to be answered. Habits are prime examples. It is to see the rule as normative, calling for the behavior. See, e. Legal officials must treat the fact that other officials conform their recognition of valid law to the basic validity rule as a reason to do so themselves albeit possibly implicitly or subconsciously.

Hart shares Searle's starting point that legal rules can be valid and hence institutional facts when enacted and before anyone has occasion to conform to them. The basic validity rule is therefore for Hart a practice theory rule, its normative force arising from its acceptance. Even if we reject Hart's practice theory account of the basic validity rule perhaps for leaving mysterious how we get from practice description to the normativity of a rule 64 64 See above, n. See also especially Searle , The difficulties in assimilating the basic validity rule to the Background should now be apparent.

That determination of legal validity is precisely the assignment of function Searle discusses. There is a right answer at which the officials are aiming in their validity practices, and they acknowledge mistakes as misapplications of their validity rules. It might seem that this is just a problem of seeing the basic validity rule as a practice theory rule in Hart's sense and that a solution would be to reject the practice theory and embrace Searle's notion of the Background for basic validity rules.

However, it would not be enough for a legal positivist merely to reject the practice theory of rules for the validity rule. In fact, Hart's practice theory gets a lot closer to the Background than other candidates for the basic validity rule. In order to square with Searle's Background, a legal positivist would have to give up on the idea that the basic validity rules are endorsed by or guiding the behavior of officials at all.

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More recently, Searle has complicated the discussion by introducing notions of Background powers, which are norms that might come much closer to what we see with the basic validity rule. They include, for example, forms of acceptable dress and speech, acceptable moral opinions, and other basic behavioral norms Searle , There are two problems with this move for the basic validity rule. For one, Searle explicitly excludes legal sanctions from the kinds of pressure brought to bear on violations of the Background social norms , Of course, violations of the basic validity rule are not typically met with legal sanctions in the criminal or civil sense.

If a violation of the basic validity rule is a mistaken validity determination by an official, then the usual response — a contrary declaration by officials of superior jurisdiction — may not count as a legal sanction. So, if we are narrow in our understanding of legal sanctions to exclude being overruled or perhaps losing one's job, then this might not be a problem. The bigger problem is that Searle is clearly talking about a background set of cultural norms that are enforceable by anyone and everyone , While ordinary citizens can make use of the basic validity rule themselves to make personal decisions about which laws they consider to be valid parts of the legal system they inhabit, their decisions do not have any legal weight.

The basic validity rule is not aimed at them; it is aimed at the officials who are charged with making determinations of validity Shapiro , Perhaps the most promising way out of this difficulty, offering the hope of seeing the basic validity rule as an element of Searle's Background powers, is to see the officials as constituting a society unto themselves. This would be to say that the basic validity rule is a Background norm of a special club that officials belong to. The difficulty here is the hierarchical way in which officials are usually organized with respect to their validity determinations.

That is, since Searle's Background powers are possessed and enforced by everyone in society, there is a distributed and egalitarian character to their normativity that we do not see in the way the basic validity rule is addressed to officials. Even if we imagine officials at different levels of the legal hierarchy are equally important to the maintenance of the system by their use of the basic validity rule, that rule is still giving some officials the role of making fresh validity determinations and others merely the role of recognizing and applying the determinations made by others.

But as the basic validity rules are usually clearly aimed at and deployed by a wider set of officials, this move is artificial and runs counter to observed legal practice. Might we say that the basic validity rule is constitutive of legal institutionality in the same way we say that it is constitutive of validity? That certainly seems to fit the analogous theoretical roles it plays in the two theories.

This shifts the focus of our discussion somewhat. In saying that the basic validity rule is itself only a constitutive rule but still an institutional fact, we are saying that there is something special and foundational about it, and perhaps similar foundational validity norms for institutionalized social practices. The details of this make it clear that it would not be directly available for the much less foundational notion of the basic validity rule of a legal system.

Since symbolization itself is the function of language, we identify certain sounds and groups of letters as instances of symbolization by linking the realization that thoughts represent and symbolize objects to the realization that language is the medium for doing so. If we can interpose this additional intermediate foundation not as basic as language , then the onus would be back on the legal theorists to fill in the blanks. It would itself be the foundational constitutive rule for the institution of law and a search for its constitutive rule would be as misplaced as the question of whether it is legally valid.

Whatever makes the basic validity rule binding upon officials is then also the source of legal normativity more widely. It certainly seems reasonable to say that officials are under a legal duty to adhere to the basic validity rule in their determinations of validity. Since that rule then determines which other legal norms are legally valid, it gives the officials the deontic power to impose novel legal norms in conformity with its dictates, transmitting normativity to the legal requirements they create and apply.

The basic validity rule that sets forth the criteria by which the elements of a legal system are to be recognized as valid cannot fit neatly into Searle's picture of institutional reality.

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It must be an institutional fact rather than a simple social fact because the rule counts as something more than the bare fact of the validity practices of officials. It now carries a demand for compliance by legal officials. The description has become a reason to behave in certain ways. It cannot be merely an informal institutional fact because it is a standard by which other validity decisions can be deemed incorrect a standard by which counterfeit instances can be recognized. Furthermore, it is not flexible and spontaneous, characteristics of informal institutions.

Yet it cannot be a formal institutional fact because it cannot be codified in Searle's sense. We do not see official fixation of the characteristics of its type by which we could decide which among token candidate basic validity rules are valid. It is constitutive of legal validity itself. There is no constitutive rule by which the validity practices of officials are deemed to function as normatively binding.

Finally, there is no official, explicit act institutionalizing the basic validity rule. This leaves us in a conundrum when trying to understand law from within Searle's institutional framework. One possible solution is to interpose a new class of foundational facts for institutional systems. The full text of this article hosted at iucr. If you do not receive an email within 10 minutes, your email address may not be registered, and you may need to create a new Wiley Online Library account.

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Abstract The most influential theory of law in current analytic legal philosophy is legal positivism, which generally understands law to be a kind of institution. Adler, Matthew D. Crossref Google Scholar. Google Scholar. Wiley Online Library Google Scholar. Early View Online Version of Record before inclusion in an issue. References Related Information. Close Figure Viewer. Browse All Figures Return to Figure. Previous Figure Next Figure. Email or Customer ID. Forgot password?

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Old Password. The study results in an elaborate conceptual framework for institutional analysis of positive law. Readership: Specialists in legal theory and lawyers interested in theoretical issues, particularly in linguistic approaches and questions related to the institutional nature of law. Conceptual Recapitulation. Kinds of Legal Judgments and Legal Situations. Types of Legal Consequences. Domains of Operative Facts.

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