On the Artefactual - and Natural - Character of Legal Institutions

Are legal institutions artifacts? If artifacts are conceived as entities whose existence depends on human beings, then yes, legal institutions are, of course, artifacts. But an artifact theory of law makes a stronger claim, namely, that there is actually an explanatory gain to be had by investigating legal institutions as artefacts, or through the features of ordinary artefacts. This is the proposition I will discuss in this essay, and the argument will be that while this understanding of legal institutions makes it possible to find common ground between legal positivism and legal realism, it does not capture all of the insights offered by these two traditions. An artifact theory of law can therefore be necessary in explaining the law, but it will not suffice to that end. At the same time – and contrary to what seems to follow from the artifactual character of legal institutions, namely, that they cannot be conceived as natural entities – I will be arguing that legal artifacts bear a relevant connection to certain conceptions of nature, thus vindicating one of the original insights behind natural law theory, but doing so through a descriptive lens.