Sociological Approaches to Theories of Law
A philosophical account that appears to be gaining momentum of late among legal philosophers is that law is an artifact. Artifacts are generally understood by philosophers to be intentionally created functional objects, and the intended function determines what kind of artifact it is. Artifact legal theorists contend that legal rules, legal institutions, and legal systems are artifacts. This essay critically examines artifact legal theory. While striving to make law fit artifact theory, leading proponents stretch the meanings of and connections between intentions, creation, objects, and functions, and in the process of doing so, they distort legal phenomena. Artifact theory, I argue, is a poor fit for law and should be discarded in favor of viewing law as a social construction. Although all artifacts are social constructions, social constructionist theory is far broader than artifact theory and can fully account for legal phenomena without stretching or distortion.
Legal Philosophy, Artifact Legal Theory, Legal Systems, Legal Institutions, John Searle, Social Constructionism
Excerpt from Brian Z. Tamanaha, Sociological Approaches to Theories of Law (2022)
Tamanaha, Brian Z., "The Problems with Artifact Legal Theory" (2022). Scholarship@WashULaw. 16.