Law as expressive artifact

Before we proceed with the argument, there are a few things I need to say about the nature of artifacts. An artifact is an object created by humans for some purpose. There are many kinds of artifact in the world we inhabit. There are chairs, cars, computers, houses, and countless other objects deliberately created to serve some function or purpose in our lives. We can use them for their intended purpose or for other purposes, perhaps not intended; we can modify their uses in various ways. It is generally thought that artifacts are objects deliberately created for some purpose, with that purpose in somebody’s mind, as it were. And that is surely correct about most ordinary' artifacts we use in our daily lives. But deliberate creation for a purpose is not necessary' for an artifact to come into existence as such. Some artifacts may have been created by chance, or later significantly modified by repeated use, without any' deliberate design. What is essential for an object to be an artifact, I will assume here, is that it has been created by' humans and that it is used by humans for some typical or designated purpose or other.

Not all artifacts are objects in the physical sense. Many of the artifacts we have are intangible: novels, poems, legends, gods and, generally, narratives, would be prime examples. Stories are created by' human beings. They have authors, even if, sometimes, the authors are not known and difficult to individualize (as with the coming into existence of a legend or a myth). What makes stories artifacts is the fact that they are created by humans, with their particular properties or content, if you will. I hope we can proceed by assuming that the intentions with which an object is created are not necessarily constitutive of what that object is. We can certainly' grant that artifacts, tangible and intangible, come into existence intentionally. They' are intentionally created as objects of a certain kind. But it is not always the intention of the original creator of an object that makes it an artifact of a certain kind. Something that was created or otherwise came about as an X may become a Y-artifact by repeated and widespread Y-uses of it. Creation is sometimes no more than recurrent and widespread intentional use.

Generally speaking, although exceptions are possible, artifacts exist, and persist, when there is a population or a community' that treats them as such.

Many of the artifacts we encounter are compound, by which I mean that they' are artifacts within artifacts. Think about a painting or a sculpture exhibited in an art museum. The painting is an artifact, of course, but so is the museum. Thus a painting exhibited in a museum is an artifact within an artifact, but not only' in a spatial sense. An art museum is an institution with certain features created by humans for certain purposes, serving various functions. When a painting is exhibited in a museum, the exhibition, in the context of a museum, gives the painting certain meaning and function that it might not otherwise have. In some cases, the differences are subtle, in others, quite profound. A Rembrandt painting might not be affected all that much by' being exhibited in the Frick collection, but the exhibit of a mirror stuck in a pile of sand in an art gallery may contribute to the artistic nature of the object a great deal.²³ It may not even be a work of art without the institutional support it gets by being positioned where it is. Putting an artifact in another artifactual context often changes the quality' of the artifact.

There is a particular kind of compound artifact, however, that is relevant to both fiction and law. There are many instances in which social conventions shape the ways of creating artifacts of a certain kind. There are conventions, for example, about what counts as a realistic novel, or as epic poetry, and those conventions would shape and guide ways in which authors create a novel or write an epic poem and of course, the ways in which we read them. There are conventions about symbolism that would shape the ways in which directions in space are indicated, and thus signs made, etc. In previous work I argued that there are conventions about what counts as a competitive game, and they would shape ways in which we invent and play structured competitive games, how we react to them, etc.²⁴ If conventions are also artifacts, as I think they are, then these would all be examples of compound artifacts. A novel, for example, would instantiate both original creation by the author, which would make it a paradigmatic example of an intangible artifact, but also some conventional norms and guidance in the background, contributing something, perhaps tacitly, to what the novel as an artifact is. And this makes, essentially, every novel a compound artifact. Novels, in this respect, are very' much like paintings in an art museum, obviously in a more intangible manner.

I am assuming that there is not much I need to say by way of establishing that conventions are (intangible) artifacts. Conventions meet all the conditions about artifacts we mentioned above; they are created by humans for particular purposes, their persistence and contents depend on the ways in which they are actually used, and, metaphysically speaking, their existence is a function of what users make of them.²⁵ Now it is true, of course, that conventions are rarely created in a deliberate manner to serve as conventions; conventions tend to emerge in an organic, often slow and invisible manner, evolving in ways that are difficult to retrace with any great accuracy, even in retrospect. But as I mentioned before, this is often true about artifacts, even tangible ones.

I hope we said enough here to show that law, like fiction, and perhaps art in general, is a compound artifact. But let’s take the analogies a step further, or, rather, back to the point we started with, to see how law and fiction are created by expressive means. They are both compound expressive artifacts. And that is so, because in both cases, as in some others, the saying so makes it so. Fiction is created by telling a story - that is, by expressing sentences in a natural language. And notice that the story' told is constitutive of the truths in it. And so is the law. Law is created by performative speech acts, mostly of the institutional kind. And those speech acts constitute what the law is; they constitute what is true in the law. There are limits to this, of course; just as there are way's in which one can fail to tell a story', say, by asking us to envisage the unimaginable, authorities can fail to make law in various ways. Furthermore, I do not mean to exclude the possibility' that there may be other things that contribute to legal contents, even moral considerations, if you insist. But that is true of fiction as well; many' things can contribute to way's in which we interpret a fiction, besides what the fiction says or implicates. In both cases, however, the story' has to have been told by someone for there to be a story' that we can think of and interpret in various ways.

Law is created in myriad ways at different levels. Legal rights, obligations and powers can be created, modified and abolished at individual levels, at group levels and generally, at the level that applies across an entire jurisdiction. In all these cases, the creation or modification of the law is done by' speech acts. In previous work I argued, at some length, that the enactment of a law, by democratic institutions or otherwise, is a collective speech act, and I will not repeat the argument here.²⁶ We can add to it, however, by noticing the multitude of way's in which institutional performative speech acts modify’ the law. Judicial decisions can create or modify’ the law by the court’s holding that the law is this or that; contractual obligations are formed by' speech acts - that is, by' one making an offer and the other accepting it; official acts with legal ramifications are carried out by regulations and instructions, and so on and so forth. All over the spectrum we create and modify the law by performative speech acts. And most of these performative speech acts, including enactment of laws, are of the institutional kind; there are rules or conventions in the background stipulating that A’s saying “S” in context C counts as doing Y. Which is, of course, what makes the law a compound artifact, and a rather complex one at that.

One possible exception that comes to mind here is customary' law. It is sometimes the case, perhaps more so in the international domain, that laws are created, as it were, by' long-standing custom - that is, by some general and consistent conformity' with a presumed norm over a long period of time. Now the question of how to reconcile customary law with the idea that laws have to be created in some deliberate manner, is an old chestnut. My' purpose here is not to defend any' particular version of good old legal positivism. Suffice it to see that law is very' much like fiction in this respect as well. Most fiction is created by an author deliberately' telling a story, in writing or by some other expressive means. But we have quite a lot of fiction stemming from myths and legends, the origins of which are often obscure and intractable. As I mentioned above, artifacts, quite generally, often come into existence in obscure ways, and what determines their existence as an artifact of a certain kind is mostly a matter of repeated widespread use for some purpose or other. And that is true of expressive artifacts as well. They' must have been created by some speech acts at some point, but their original creation sometimes matters little to ways in which we use them now, and ways in which we understand their contents.

You may' still press the question of whether customary' law is an exception to the idea that law is generally' created and modified by performative speech acts. I may' not have a clear answer to that, but it doesn’t matter much. Even if there are some exceptions, the law is created, by and large, by speech acts. And the kind of speech acts in question are typically institutional performatives, namely, enabled by rules or conventions at the background determining that by saying “S” in context C, one performs Y - that is, one creates or modifies something that is legally significant. Generally speaking, however, in the legal context, very' much like in fiction, the saying so makes it so; it makes it true, in the context, that it is the law.

Law, like fiction, is an expressive artifact, and that has a lot to do with the fact that both are closed prefixed contexts. Like fiction, the law does not describe how things are, irrespective of its own creation, as it were; it creates a world in itself by stipulating that the relevant legal world is so and so. And this, 1 hope you can see, is what makes the legal domain a closed prefix. If the law purported to describe how things are in the world outside it, then, of course, it would be an open prefix, but the law is not in the business of telling us how things are. It is in the business of telling us how they ought to be, or what we ought to do, from a legal point of view. And in actual legal systems, those who make the law make it true, in the law, that it is what they say it is, because law, like fiction and like other expressive artifacts, is one of those domains in which the saying so makes it so.²⁷ And hence it is a closed prefix.

Now, of course, the creation of law is much more complex than fiction; as I mentioned earlier, in every jurisdiction there are countless people and institutions who can contribute to what the law is on this or that, from legislatures and courts, to administrative agencies, bureaucrats, corporations, and even private individuals in their everyday transactions. But these complexities do not change the essential picture. All these creations and modifications of law are performative speech acts given their legal significance by a complex web of rules and conventions (many of which are themselves previously enacted legal rules).

Generally speaking, then, I submit that expressive artifacts are closed prefixes; enacting a law gets you only as far as enacting a law, something that is true in a particular legal order, and only from a legal point of view. Stories and laws, by themselves, don’t make anything true outside the story' or the legal world, so to speak. Now, of course, a good story' is one that you can learn something from, and it should reveal to you truths or insights of various kinds beyond it. And that is true of law as well. There is a lot we can learn from the law, about the human condition and human relations, about morality and politics and whatnot. But you don’t learn these things by way of accepting their truths in virtue of the law’s saying so. What is true in a fictional story' is one thing; what you can learn from it is another. Similarly, what is true in the law, or what the law is, is one thing, and what you can learn from it is another.

Furthermore, we should keep in mind that with respect to both fiction and law, as with respect to other closed prefixed contexts, statements can be made from the vantage point of the prefixed context as well as externally, about things in that context. Not everything we say' about a fiction has to be said from the point of view of the fiction in question; we can express statements about it, externally, as it were. A great deal of literary theory and literary' discourse is external, in this sense.²⁸ It makes statements about various aspects of the prefixed context, but from the outside, as it were. For example, saying that “Sherlock Holmes is a detective” is an internal statement, rendered tine or false by what the story says or implicates. But saying that “The character of Sherlock Holmes exhibits stereotypes of chauvinism typical of Victorian England” is not prefixed. It is a statement about certain aspects of the prefixed context, not within it. And, of course, the same goes for statements about the law. When we say that the law requires this or that, we would normally make the statement as prefixed by the relevant legal order, but we can also make many statements about aspects or elements of the legal order that are external, not prefixed. Which is essentially what we do, for example, when we subject laws to moral scrutiny or other kinds of critique.²⁹