Acting within and Outside an Institution

There is an influential, and in a sense paradigmatic view in legal philosophy according to which being a participant in a legal system entails adopting a specific internal point of view. This conception, which traces back to H.L.A. Hart but can also be attributed to John Searle, connects our participation in a given legal practice with the acceptance of, and abidance to, a given system of rules: for this reason I call it the Rule conception of institutional action. I will argue that this conception, if taken alone, limits our capacity to describe the complexity of institutional phenomena, and that if we complement it with an analysis aimed at bringing out the pragmatic dimension of these actions, a phenomenology will emerge which is broader and more shaded than that shown by the simple, binary internal/external distinction. For this purpose, I will resort to a simple example of institutional action taken from chess and I will apply to it the analytical framework of speech acts theory. In this way, I will arrive at a distinction among seven di erent kinds of institutional agents in terms of di erent degrees of internality and externality with respect to the institutional practice. Then I will apply this analysis to a legal example drawn from criminal procedure.