Dear Joao Lima, Thank you for this, I will definitely have enough to read for a while. Searle I know, but the others are new.
Best, Christian-Emil ________________________________ From: Crm-sig <[email protected]> on behalf of João Oliveira Lima <[email protected]> Sent: 25 August 2017 14:19 To: martin Cc: crm-sig Subject: Re: [Crm-sig] End of Existence for Rights? ISSUE 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 <[email protected]<mailto:[email protected]>> 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). 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