Law as Authoritative Fiction (original) (raw)

Abstract

Law, like fiction, is one of those domains in which the saying so makes it so. The main purpose of this essay is to show how various aspects of law and fiction are closely related, and how they exhibit features that are generally shared by expressive artifacts. Both law and fiction belong to a type of intangible artifacts, created by communicative means, giving rise to closed prefixed contexts in which truths in that context are constituted by performative speech acts. The law, however, is very much unlike fiction in that it is essentially authoritative. I conclude by showing how law’s spacio-temporal aspect, which it does not share with most other expressive artifacts, derives from its authoritative nature.

Key takeaways

AI

1. Law and fiction are closed prefixed contexts where truth is established by performative speech acts.
2. The legal content is context-specific, requiring indexing to legal systems and temporal parameters.
3. Both law and fiction create their own worlds, dictating what is true within those contexts.
4. Kelsen's and Raz's theories highlight the necessity of indexing legal statements to specific systems and times.
5. The law's authority derives from its ability to enforce norms within jurisdictional boundaries, unlike fiction.

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References (17)

1. K Bach & R Harnish, Linguistic Communication and Speech Acts (MIT Press, 1979) ---"How Performatives Really Work" 15 Linguistics and Philosophy, (1992), 93.
2. A. Byrne, "Truth in Fiction: The Story Continued" 71 Australian Journal of Philosophy (1993), 25
3. H. Kelsen, General Theory of Law & State (Wedberg trans., Russell & Russell, NY 1961)
4. Lemmon, E. J., "On Sentences Verifiable by their Use" 22 Analysis, (1962) 86.
5. D. Lewis, "Truth in Fiction", Philosophical Papers Vol. 1, (Oxford, 1983), 261.
6. A. Marmor, The Language of Law (Oxford, 2014) ---Philosophy of Law (Princeton, 2011)
7. ---Social Conventions (Princeton, 2009)
8. ---Interpretation and Legal Theory (Revised 2 nd ed, Hart Publishing, 2005)
9. ---"An Institutional Conception of Authority", 39(3) Philosophy & Public 44 Jewish religion has very strict jurisdictional boundaries, it only applies to those who are "Jews" according to the religious definitions of who counts as a Jew. But perhaps the explanation for this is also partly legalistic, Jewish religion is a very legalistic one, in essence a covenant between God and its chosen people; so it matters who belongs to the people. But other religions also have similar jurisdictional conceptions, though probably less rigid. Affairs, (2011), 274.
10. ---"The Rule of Law and its Limits", 23 Law & Philosophy, (2004), 1.
11. Nils-Hennes Stear, "Imaginative and Ficntionality Failure: A Normative Approach", 15 Philosopher's Imprint, (2015).
12. Raz, The Authority of Law (Oxford, 1979)
13. J Searle, "How Performatives Work", 12 Linguistics and Philosophy (1989), 535.
14. P Strawson, "Intention and Convention in Speech Acts", Logico-Linguistics Papers, (Methuen, London, 1971), 170.
15. A. Thomasson, Fiction and Metaphysics (Cambridge, 1999)
16. P. van Inwagen, Material Beings (Cornell U Press, 1990)
17. Walton, K. Mimesis as Make-Believe (Harvard U Press, 1990)

FAQs

AI

How do legal norms illustrate the concept of closed prefixes?add

The paper demonstrates that the truth of legal norms is contingent upon the specific legal system and time, as illustrated by the proposition 'According to the law in S at t, John ought to ϕ'. This means legal obligations can shift entirely based on jurisdiction, exemplified by differing laws across states or nations.

What are the implications of law as an expressive artifact?add

Law functions as an expressive artifact because its truths are established through performative speech acts, meaning that the very act of enacting a law creates its normative reality. This positions law similarly to fiction, where the act of saying something renders it true within its context.

What distinguishes open prefixes from closed prefixes in legal contexts?add

Open prefixes, like those used in scientific contexts, allow for valid conclusions with un-prefixed statements, whereas closed prefixes require contextual embedding, as found in legal propositions. The necessity for a prefixed context in law reflects that legal truths depend on the specific jurisdiction and institutional backing.

How can legal contexts incorporate non-legal facts?add

The paper asserts that legal contexts can incorporate non-legal facts implicitly, meaning these facts must be recognized as relevant to achieve legal significance. This incorporation requires that such facts align with the established legal framework, demonstrating a complex relationship between fact and legal interpretation.

In what way does the law rely on authoritative power?add

The law's authority is derived from its institutional design, imposing normative obligations through a complex web of rules that constitute its jurisdiction. This authority manifests in the power to enforce legal norms, distinguishing it from other expressive artifacts like fiction that lack such direct enforcement mechanisms.