Miguel Garcia-Godinez

Contra recent, inflationary views, the paper submits a deflationary approach to legal ontology. It argues, in particular, that to answer ontological questions about legal entities, we only need conceptual analysis and empirical investigation. In developing this proposal, it follows Amie Thomasson’s ‘easy ontology’ and her strategy for answering whether ordinary objects exist. The purpose of this is to advance a theory that, on the one hand, does not fall prey to sceptical views about legal reality (viz., that ontological truths about legal entities are established by metaphysical principles); and, on the other, is compatible with common-sense jurisprudence (viz., that there in fact exist legal entities, and they all have important practical implications). While this methodology is common to legal philosophers interested in elucidating the ‘artifactual nature’ of law, the paper departs from their projects by taking a step forward in connecting this deflationary approach to legal ontology with an expressivist account of legal discourse, thus providing enough resources to satisfy the general ambition of jurisprudence, viz., to establish the conditions for the analysis of legal reality and its normative character.

Although social practices are widely considered to be essential building blocks in the construction of our social world, there is not much of an agreement regarding what kind of entities they are and what constitutes their nature. As an attempt to make progress in this direction, I provide here a general account of their ontology. By implementing specific resources from contemporary social ontology and collective intentionality, I argue that social practices are composite, material entities socially constructed by organised social groups through their individual members acting according to collective reasons. With this, I intend to contribute towards the understanding of both the reality of social practices and their role in the construction of other social entities; particularly, artifacts and institutions.

Amie L. Thomasson, currently appointed Daniel P. Stone Professor of Intellectual and Moral Philosophy at Dartmouth College and celebrated as one of the most influential living philosophers, has gained international recognition as a leading figure in metaphysics, ontology, phenomenology, and aesthetics. Although her extensive body of work stretches far beyond the topic of this book, it is fair to say that her most notable contributions as well as controversial theses lie in her deflationary approach to ontology, which is why it is the selected theme of this volume.

Raimo Tuomela (1940-2020) was a leading figure within social philosophy and a pioneer of contemporary social ontology. His main research and publications helped define the scholarly agenda of a philosophical investigation of social reality. Working first on (social) scientific realism and (social) action theory, he then developed an unprecedented account of collective intentionality—the kind of intentionality that individual agents require in order for them to perform intentional actions together, as a group.

Although there is already an important discussion regarding social ontology (a first-order investigation about social entities, e.g., social objects, social events, social relations, and social categories), not much attention has been paid to social meta-ontology (a second-order inquiry concerning what it means and how to answer whether there are any such entities). With the intention to contribute towards bringing the latter into the philosophical spotlight, I submit here a brief survey of the meta-ontological issues about two specific kinds of social entities, viz., social and institutional practices. After elaborating on Thomasson’s easy approach to ontology, I argue that it can be extended to account for the existence of those social entities.

Proxy agency is the capacity of individuals and groups to act for other individuals or groups in specific social transactions. For example, a legal team acts as a proxy for a client in a courtroom, or the Prime Minister acts as a proxy for the UK Government when attending international meetings, etc. Although a very common social phenomenon, it has not yet received enough philosophical treatment. Currently, the most developed account of this capacity is Ludwig’s proxy agency in collective action. Yet, his account relies on a deflationary, we-content approach to collective intentionality (á la Bratman). In this chapter, I argue that this approach is far too weak to explain proxy agency in institutional contexts—where the individuals and groups formally authorised to perform rule-guided group activities for the principal hold a strong, non-conditional we-commitment. In order to elucidate this feature, I provide an account of proxy agency based on a more robust, we-mode approach to collective intentionality (á la Tuomela). I suggest with this that, for institutional proxy agency to operate as expected, there must be appropriate conditions of sociality in place—which ultimately coheres with the larger project developed by Tuomela on social ontology.

Amie L. Thomasson, the Daniel P. Stone Professor of Intellectual and Moral Philosophy at Dartmouth College, has gained international recognition as a leading figure within various areas of philosophy. She has recently been celebrated as one of the most influential living philosophers for her significant contributions to metaphysics, ontology, phenomenology, and aesthetics. By engaging critically with her approach to metaphysics, modality, conceptual analysis, and the methodological issues concerning ontological questions about ordinary objects, social entities, and fictional characters, as well as including a chapter from Thomasson herself where she makes explicit the internal connections which run through her body of work, this volume delivers the first thorough discussion of Thomasson’s philosophy.

Raimo Tuomela, late Professor Emeritus at the Centre for Philosophy of Social Sciences (TINT), University of Helsinki, is widely regarded as one of the most important philosophers of our time. He published extensively on various topics within social philosophy; particularly, on social action, cooperation, group belief, group responsibility, group reasoning, social practices, and institutions. To celebrate his legacy, this volume engages with and delves deeply into his philosophy of sociality. By gathering original essays from a world-class line-up of social ontologists, social action theorists, and social philosophers, this collection provides the first comprehensive and critical treatment of Tuomela's outstanding contribution to social ontology and collective intentionality.

In recent years, some prominent legal philosophers have argued both that law (as a legal system) is a certain kind of abstract artifact and that we can elucidate its nature by elucidating its artifactual properties (e.g., authorship, functionality, etc). In this chapter, I present an objection to their arguments and show that law is not an abstract artifact, but rather a composite, concrete entity. I do so by arguing that law is an institutional practice, the purpose of which is for legal organisations to produce legal artifacts (e.g., laws, legal judgements, international treaties, etc) through the performance of legal activities. Based on this, I next provide an ontological analysis of these artifacts by elaborating on the conditions for their creation and maintenance. By distinguishing law as an institutional practice from legal artifacts as institutional objects created by legal organisations, I intend to advance a more precise ontological account of legal phenomena.

In a recent contribution to legal ontology, Kenneth Ehrenberg identifies a puzzle concerning _the basic validity rule_ of legal systems: If formal institutions require a codified foundational constitutive rule, then legal systems cannot be formal institutions, since their foundational constitutive rule is necessarily an uncodified basic validity rule. To solve this puzzle, Ehrenberg suggests taking this rule as ‘a foundational and self-identifying institutional fact’. Here, I challenge his solution and the very existence of this puzzle. By arguing, contra Ehrenberg, that the basic validity rule is not the foundational constitutive rule of a legal system, but only the foundational constitutive rule of legal validity; that its codification in fact contributes towards the institutionalisation of a legal system; and that the true foundational constitutive rule of a legal system is the formal group structure of the higher-constitutional organisations, I submit an alternative account of the institutional nature of legal systems.

This project develops an ontological analysis of law. It starts by characterising law as a layered practice constituted by the performance of various types of group activities at two levels: the social and the institutional. At the social level, it examines the conditions for social groups to create and sustain standards of conduct through normative social practices of recognition. At the institutional level, the investigation moves to the conditions required for legal organisations to carry out the legal activities that constitute a legal practice. These two levels are studied through the lenses of ontological accounts of social groups, group action, and collective intentionality. In the first part of the project, Hart’s Social Practice Theory of Law is discussed. His theory is used to present a social facts-based explanation of law’s reality and to introduce a fundamental element in the social construction of law: the internal point of view. Though this theory provides the groundwork for the analysis of certain essential properties of law, this project argues that it lacks an account of how legal organisations are created. To fill in this gap, this project considers next MacCormick’s Institutional Theory of Law. By discussing each of its main elements, it is shown that, while his theory improves on Hart’s by introducing an explanation of both how institutional groups come into existence and how they are involved in the creation and maintenance of an institutional normative order, it needs further development. Specifically, an account of the different forms of group structures and the participatory intentions involved in the performance of legal activities is needed. This is addressed in the second part of the project, which is dedicated to advancing a thorough analysis of the social construction of law based on the merits of these prominent legal theories. In the last three chapters of this thesis, novel accounts of collective intentionality and the ontology of social groups and group action are explored and used to provide the elements missing in MacCormick’s legal institutionalism. In particular, this project considers Thomasson’s work on the metaphysics of artifacts to address problems concerning the ontological status of social constructions; Tuomela’s theory of social practices and we-intentions to develop an explanation of how sociality is constructed out of group attitudes and group actions; Ludwig’s analysis of institutional agency to explain the constitutive elements based on which institutional groups perform rule-governed group activities; and Ritchie’s theory of organised groups to clarify the various kinds of group structures involved in law-activities. The result of this project is a fresh, interdisciplinary theory of the institutional nature of law.