Dear Martin, Christian-Emil and Robert,
The beginning of legal neo-institutionalism was marked by the book "An
Institutional Theory of Law: New Approaches to Legal Positivism" (1986) by
Neil MacCormick (1941-2009) and Ota Weinberger (1919-2009). The main
representative of the classical institutionalism was Santi Romano
(1875-1947) and, currently, Dick Ruiter (Austria) and Massimo La Torre
(Italy) have developed neo-institutionalism, among others.
John Searle's Theory of Speech Acts (1969) influenced several areas of
knowledge (Law, Economics, Political Science, etc.). John Searle's
subsequent works, published in “The Construction of Social Reality” (1995)
and “Making the Social World” (2009), are very interesting for
understanding the social ontology in which we live.
John Searle classifies rules as regulative and constitutive. In the Law,
the regulative rules correspond to the norms of conduct that define how the
agents must behave within a legal relation. Constitutive rules correspond
to the norms of competence, which deal with the hypothetical capacity of
agents to change their legal positions by establishing new institutions
facts (instances of legal institutions). For example, the activity "signing
a contract" (E7 Activity) creates a new contract and, according to it, the
norms of conduct are assigned to the parties involved.
The definition of legal institutions varies in time, by the modification
and increase of legal norms, and between jurisdictions: the institution
"property" has different conformations according to the jurisdiction.
Currently I am doing a doctorate in Law at the University of Brasilia
(Brazil) where I research about the consolidation of legal norms (process
of simplification of the legal system by systematization of current legal
norms). In this work, I felt the need to detail the components of an legal
institution. I found the answer in Wesley Newcomb Hohfeld's (1879-1818)
paper: "Some Fundamental Legal Conceptions as Applied in Judicial
Reasoning."
Hohfeld offers a taxonomy of norms of conduct (rigth / claim <> duty,
privilege <> no-right) and norms of competence (competence <> liability,
immunity <> disability) that represents legal relationships at their atomic
level. These concepts are ideologically neutral, that is, they can be
identified in any legal system at any time. Hohfeld offers them as the
lowest common denominators of Law: "Ten fractions (1/3, 2/5, etc.) may,
superficially, seem so different from one another as to defy comparison.
If, however, they are expressed in terms of their lowest common
denominators (5/15, 6/15, etc.), comparison becomes easy, and fundamental
similarity may be discovered".
Here are some sources on the topics covered here:
*** Institutional Theory of Law
MACCORMICK NEIL; WEINBERGER,O. (Ed.). An Institutional Theory of Law: new
approaches to legal positivism. Dordrecht: Springer Science & Business
Media, 1986.
ROMANO, S. L’Ordinamento Giuridico. 1917.
RUITER, D. W. Institutional legal facts: legal powers and their effects.
Dordrecht: Kluwer Academic Publishers, 1993. v. 18.
RUITER, D. W. Legal institutions. Dordrecht: Springer, 2001.
TORRE, M. L. Institutional theories and institutions of law: On neil
maccormicks savoury blend of legal institutionalism. Law as institutional
normative order, p. 67–82, 2009.
*** Speech Acts / General Theory of Institutional Facts
SEARLE, J. R. Speech acts: An essay in the philosophy of language.
Cambridge: Cambridge University Press, 1969. v. 626.
SEARLE, J. R. Expression and meaning: Studies in the theory of speech acts.
Cambridge: Cambridge University Press, 1985.
SEARLE, J. R. The construction of social reality. New York: Free Press,
1995.
SEARLE, J. R. Mind, language and society: Philosophy in the real world. New
York: Basic Books, 1999.
SEARLE, J. R. What is an institution. Journal of institutional economics,
Cambridge Univ Press, v. 1, n. 1, p. 1–22, 2005.
SEARLE, J. R. Making the social world: The structure of human civilization.
New York: Oxford University Press, 2009.
SEARLE, J. R. Are there social objects? In: Perspectives on Social Ontology
and Social Cognition. Dordrecht: Springer, 2014. p. 17–26.
*** Hohfeld Framework
BARKER, K. Analytical philosophy and private law: The modern value of
wesley newcomb hohfeld. In: A Discourse on the Legal Method: Historical and
Philosophical Influences on Legal Thinking’. Moscow: [s.n.], 2016.
D’ALMEIDA, L. D. Fundamental legal concepts: The hohfeldian framework.
Philosophy Compass, Wiley Online Library, v. 11, n. 10, p. 554–569, 2016.
HAGE, J. C. Powers and Competences. 2015.
HOHFELD, W. N. Some fundamental legal conceptions as applied in judicial
reasoning. The Yale Law Journal, v. 23, n. 1, p. 16–59, 1913.
HOHFELD, W. N. Fundamental legal conceptions as applied in judicial
reasoning. The Yale Law Journal, v. 26, n. 8, p. 710–770, 1917.
TUCAK, I. Usability of hohfeld’s analysis of fundamental legal concepts
while teaching continental law. In: Current Problems in Legal Theory and in
Comparative Law. [S.l.]: Law Faculty Babes-Bolyai University, 2012.
Kind regards,
Joao Lima
On Wed, Aug 23, 2017 at 12:31 PM, martin <mar...@ics.forth.gr> wrote:
> Dear Joao,
>
> I think this is highly relevant. Could you point to some sources? I'd like
> to put all that legal stuff into a CRM extension, may be social history is
> the right framework? To be discussed in the next meeting.
>
> All the best,
>
> Martin
>
>
> On 8/22/2017 1:20 PM, João Oliveira Lima wrote:
>
> Dear Christian-Emil and Robert,
>
> Perhaps the Institutional Theory of Law has ideas to come up with an
> answer to your question and to the question that started this thread.
>
> Influenced by the Philosophy of Language, by J. Searle and J. Austin, the
> legal neo-institutionalism brought new light to the concept of "legal
> institution". According to Neil MacComick, "a 'institution of law' is a
> legal concept which are regulated by sets of institutive, consequential and
> terminative rules" ("Enn Normative Description" isA "E29 Design of
> Procedure") "with the effect that instances of them are properly said to
> exist over a period of time, from the occurrence of an institutive act or
> event until the occurrence of a terminative act or event" (so, "Enn Legal
> Institution" is a "E4 Period").
>
> The term "right" has a semantic overload. It is necessary to differentiate
> "right-claim/duty" as an atomic relation between two people (in the
> hohfeldian sense) as well as "right" as an instance of a legal institution
> (ex: property right). Property right consists of a bunch of atomic rights
> (claims, power, immunity, privileges).
> Kind Regards,
> João Alberto de Oliveira Lima
>
>
>
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