Ontology of Legal Reality and Metaphysics of Law
This is my main line of research. I have pursued it over the years, and it has so far led to the publication of three monographs, “Pragmatica delle regole costitutive” (“Pragmatics of Constitutive Rules”), “Costituire. Uno studio di ontologia giuridica” (“Constituting. A Study in Legal Ontology”), and “Artefatti giuridici. Il diritto tra intenzione, storia, funzione” (“Legal Artifacts. Law between Intention, History, and Function”), as well as a number of essays in national and international journals, including “Constitutive Rules in Context”, “Regolare e costituire. Sul carattere tecnico delle regole costitutive” (“Regulating and Constituting. On the Technical Character of Constitutive Rules”), “Acceptance Is Not Enough, but Texts Alone Achieve Nothing: A Critique of Two Conceptions on Institutional Ontology”, “In Defence of Constitutive Rules”, “Six Heresies on Constitutive Rules”, and, more recently and from a more interdisciplinary perspective, “Cognitive Science and the Nature of Law” and “On the Cognitive Foundations of Legal Reality”. The basic problem is the following. Institutional phenomena consist of rules, exist in virtue of rules and, in some respects, require knowledge of rules. But how is it possible for an entire domain of social reality, with which we deal every day, to be constituted through rules? How can rules create something, that is, how can they be constitutive rules? This is precisely an ontological problem: a problem in the ontology of institutions.
In order to analyse this problem, I adopt an approach that draws in many respects on contemporary social ontology and on its main authors: John Searle, Raimo Tuomela, Margaret Gilbert, Michael Bratman and Philip Pettit. On several occasions I have also used the methods and results of the phenomenology of legal reality developed by Amedeo G. Conte, especially in order to clarify the variety of forms of normative constitutivity and to distinguish the different functions that rules may perform in the construction of institutional reality.
The results of my research currently lead to a pragmatically oriented conception of the constitutive rules of institutions, which tends to view them within the broader context of the social practice in which they are embedded. In particular, I have developed a three-dimensional phenomenology of institutional concepts and of the entities to which they refer. According to this view, alongside the institutional structure and the institutional concepts constituted by the rules it contains, it is necessary to thematize, on the one hand, the broader axiological and conceptual context in which that structure is embedded, a context that typically determines the existence of meta-institutional concepts, and, on the other hand, the concrete activity of applying that structure, which determines the existence of para-institutional concepts. I discuss this perspective, for instance, in “Constitutive Rules in Context”, “Conceptualizing Institutions”, the entry “Ontology of Law”, the essay “A Three-dimensional Ontology of Customs” and, more recently, in “Constituting Power”.
In some of my research I have also shown how this three-dimensional conception of institutions and of their typical concepts makes it possible to specify the classic Hartian “internal point of view” into a more complex series of possible perspectives on law and on the institutions that compose it. I show how this is possible, for example, in “Acting within and Outside an Institution” and in “Constitutive Rules and the Internal Point of View”. This line of research on the internal point of view has subsequently been further developed from an experimental perspective in “Alice in Wonderland: Experimental Jurisprudence on the Internal Point of View” and in “The Cognitive Load of an Internal Point of View over the Rule of Law”, where the internal point of view is investigated not only as a theoretical category in legal philosophy, but also as a cognitive and practical configuration of the subjects who operate within legal institutions.
Theory of Constitutive Rules
Within the broader investigation into the ontology of legal reality, the theory of constitutive rules plays a central role. Since my earliest works, I have tried to show that the traditional distinction between regulative rules and constitutive rules should be maintained, but also deeply reworked. Constitutive rules are not simply rules that automatically “create” social activities or entities; rather, they operate within practices, presuppose conceptual and axiological backgrounds, and require activities of recognition, application, interpretation and stabilization.
This perspective was developed systematically in “Pragmatica delle regole costitutive” (“Pragmatics of Constitutive Rules”) and in “Costituire. Uno studio di ontologia giuridica” (“Constituting. A Study in Legal Ontology”), and later in essays such as “Constitutive Rules in Context”, “Regolare e costituire. Sul carattere tecnico delle regole costitutive” (“Regulating and Constituting. On the Technical Character of Constitutive Rules”), “Six Heresies on Constitutive Rules” and “In Defence of Constitutive Rules”. In these works I have argued, on the one hand, that constitutive rules are indispensable for understanding the structure of legal institutions and, on the other, that they should not be understood in a merely formalistic or textual sense. Neither social acceptance alone nor the normative text alone is sufficient to explain the existence of institutional objects, states of affairs and roles: what must be considered instead is the interaction between texts, practices, collective intentionality, functions and contexts of application.
The defence of constitutive rules that I proposed in “In Defence of Constitutive Rules” aims precisely to preserve the explanatory core of the notion while at the same time responding to some recurring objections in social philosophy and legal theory. In this perspective, constitutive rules are not a magic formula capable of explaining every aspect of institutions, but they remain an essential theoretical tool for understanding how law produces roles, powers, competences, statuses, acts and institutional objects.
Theory of Law as an Artifact
The study of legal ontology and of the constitutive rules of institutional concepts then led me to formulate a theory of legal institutions understood as immaterial artifacts, that is, a theory of law in light of the contemporary debate on the ontology of artifacts. This work has led to a fruitful collaboration with Luka Burazin and Kenneth Einar Himma, with whom I edited “Law as an Artifact”, published by Oxford University Press in 2018, and “The Artifactual Nature of Law”, published by Edward Elgar in 2022. These edited volumes have consolidated an international line of research on law as an artifact, collecting contributions devoted to the possibility of understanding law, legal norms and legal institutions in light of the ontology of artifacts.
My own theory of law as an artifact has been developed in a series of essays, including “Law as an Artifact: Three Questions”, “Legal Metaphoric Artefacts” and “On the Artifactual – and Natural – Character of Legal Institutions”, and has found systematic formulation in the monograph “Artefatti giuridici. Il diritto tra intenzione, storia, funzione” (“Legal Artifacts. Law between Intention, History, and Function”), published by Giappichelli in 2023. The core of the theory consists in the idea that legal artifacts are institutional entities whose identity depends on a combination of intention, history and function. Law is artifactual because it is intentionally produced by individual and collective agents; but it is not reducible to the mere intention of its creators, since legal institutions have a history, undergo transformations, incorporate functions and may be reinterpreted, modified or redirected within complex social practices.
The theory of law as an artifact that I defend is based in particular on the concept of “deliberative history”: the nature of a legal institution is to be conceived, in this perspective, in terms of historical properties, namely as the evolution from original collective intentional states concerning a certain rule-structure to subsequent reinterpretations and modifications. This perspective makes it possible to combine the ontology of artifacts and legal ontology in a fruitful way.
Legal Powers, Normative Competences and the Production of Law
A further development of my recent research concerns the theory of legal powers and normative competences. This topic represents a point of intersection between legal ontology, the theory of constitutive rules and the theory of law as an artifact. If law is an institutional domain constructed through rules, and if many legal entities can be understood as immaterial artifacts, then it is necessary to clarify in what sense law attributes to certain subjects the capacity to produce, modify or extinguish norms, statuses and legal positions, and to understand how the norms that attribute these powers can be constitutive.
This is the perspective of the essay “Constituting Power”, published in the volume “Legal Power and Legal Competence”. In this work, the problem of legal power is addressed through the lens of constitutive rules: legal powers are normative positions constituted by rules that determine who may produce certain legal effects, under which conditions and through which acts. But not all power-conferring rules are constitutive, and not all powers connected to an institutional structure are constituted by the rules of that structure.
Experimental Legal Philosophy: Institutional Mimesis, Institutional Concepts and Legal Metaphorical Institutions
The research on the artifactual nature of law inevitably opened my investigation to a classic problem in legal philosophy: is it possible to conceive legal institutions, in addition to artifacts, in some sense as “natural” artifacts? After all, this was the original intuition of the oldest philosophical-legal conception, natural law theory: the idea that legal institutions can be connected with the way nature works, that dike can be connected with kosmos, the natural order. Is it therefore possible that the way legal artifacts are constructed and conceptualized is connected with the way nature and physical phenomena are conceptualized? Is there a connection between law and, not nature in an objective sense, but conceptions of nature?
In addressing this problem, I have adopted a method that I intend to extend to other problems dealt with in my work: in particular, I have extended the classical tools of conceptual analysis typical of analytic legal philosophy to an experimental methodology, conducted with the tools of contemporary cognitive psychology, in collaboration with Anna Borghi, Luca Tummolini, Luisa Lugli and other scholars in cognitive psychology and cognitive science. In particular, I have extended the methodology typical of so-called embodied cognition, according to which every form of conceptualization is based on physical-motor action patterns, to institutional concepts, thus reformulating the problem of the relationship between legal concepts and natural concepts in terms of conceptual metaphors, that is, metaphorical relations between law and nature.
I present this idea extensively in “Legal Metaphoric Artefacts”, but also in “How Social Institutions Can Imitate Nature”. I show its specific relevance for legal language, for example, in “Mimesi istituzionale come integrazione concettuale: una interpretazione del prestito semantico nel contesto giuridico” (“Institutional Mimesis as Conceptual Integration: An Interpretation of Semantic Borrowing in the Legal Context”). In two works in legal philosophy and experimental cognitive psychology published with this research group, “A Marriage is an Artefact and not a Walk that We Take Together: An Experimental Study on the Categorization of Artefacts” and “Institutional Mimesis: An Experimental Study on the Grounding of Legal Concepts”, we showed, on the one hand, that there are good reasons to think that the conceptualization of legal institutions has features analogous to the conceptualization of artifacts and, on the other, that legal artifacts so conceptualized present peculiarities with respect to other non-legal abstract concepts.
This line of research has further developed in the study of institutional concepts as abstract concepts, with particular attention to the role of legal expertise. This is the perspective of the experimental works “Is Justice Grounded? How Expertise Shapes Conceptual Representation of Institutional Concepts” and “Abstract Concepts and Expertise: The Case of Institutional Concepts”, published respectively in “Psychological Research” and “Scientific Reports”. These works show how institutional and legal concepts can be analysed not only as objects of social ontology, but also as cognitive objects, whose representation varies according to the competence, experience and practices of use of the subjects. The experimental data obtained are discussed from the standpoint of legal philosophy, and connected with H.L.A. Hart’s concept of the “internal point of view”, in “Alice in Wonderland: Experimental Jurisprudence on the Internal Point of View”.
Cognitive Sciences and the Nature of Law
A further development of my interdisciplinary research concerns the more general relationship between cognitive sciences and the nature of law. In “Cognitive Science and the Nature of Law” and in “The Cognitive Foundations of Legal Reality”, I have tried to show how the results and methods of cognitive sciences can contribute not only to the study of legal reasoning or judicial decision-making, but also to general legal theory. The basic thesis is that some classic questions in legal philosophy — what legal institutions are, how norms are understood, what it means to adopt an internal point of view, how concepts such as law, justice, property, marriage or the State are represented — can be reformulated in a richer way if they are also considered from the standpoint of human cognition.
This does not mean replacing legal-philosophical analysis with experimental psychology, but integrating the two levels, connecting legal ontology with the theory of cognition, and conceiving legal reality as a reality that is at once normative, institutional and cognitively mediated.
Experimental Legal Philosophy and the Rule of Law
A more recent articulation of my experimental research concerns the concept of the rule of law. In this line of inquiry, the problem is not only to clarify the theoretical and normative meaning of the notion of the rule of law, but also to understand the cognitive conditions of its comprehension, use and application by expert and non-expert subjects.
This line of research is directly connected to the PRIN 2022 project “Il concetto di Stato di diritto: prospettive analitiche ed empiriche (CLEAR)” (“The Concept of the Rule of Law: Analytical and Empirical Perspectives”) and has produced, among other results, the edited volume “Rule of Law: In Books, in Minds”, published in 2026, and the article “The Cognitive Load of an Internal Point of View over the Rule of Law”, written with Marco Brigaglia, Andrej Kristan, Luisa Lugli, Natalia Scavuzzo, Arianna Rossi, Fabio Ruwett and Glenn De Muynck.
In this perspective, the concept of the rule of law is approached starting from two complementary dimensions. On the one hand, it is a legal, political and institutional concept sedimented in normative texts, legal scholarship, case law and legal theory. On the other hand, it is a cognitive and practical concept, requiring subjects to adopt specific internal perspectives on legal institutions, to recognize limits on the exercise of power, and to identify forms of arbitrariness, predictability, accessibility and control. The underlying hypothesis is that understanding the rule of law entails a significant cognitive load, especially when it is analysed not as a rhetorical formula or abstract ideal, but as an institutional structure to be mastered in practice.
This research therefore extends my previous work on the internal point of view, institutions and legal concepts, applying it to one of the fundamental concepts of contemporary legal theory. At the same time, it makes it possible to connect analytic legal philosophy, constitutional theory, cognitive psychology and experimental philosophy, showing how apparently traditional legal concepts can also be investigated through empirical and interdisciplinary methods.
The Connection between Law and Morality and Transcendental Foundationalism
This line of research, which I pursued approximately until 2010, developed on two distinct levels: the first consisted in critical discussion of arguments advanced by other authors, and the second in a theoretical proposal.
The two essays “Costituzionalismo e fondazionalismo morale” (“Constitutionalism and Moral Foundationalism”) and “Constitutionalism and Transcendental Arguments” operate on the first level: in them, I try to show how both R. Dworkin and R. Alexy ground their connectionist proposals on a more or less hidden use of a form of transcendental foundationalism, while both fail to address the inevitable implications of this approach at the level of general philosophy. In order to argue for this thesis, in these works I outline an evolutionary line of transcendental argument from Kant’s classical approach, through the Wittgenstein of the “Tractatus”, to a weakened variant found in the Wittgenstein of the “Philosophical Investigations”, and finally to K.-O. Apel’s “pragmatic-transcendental argument”. In “Constitutionalism and Transcendental Arguments” I also propose a taxonomy of transcendental arguments based on the intersection of two dichotomies, theoretic vs. pragmatic transcendental arguments and global vs. local transcendental arguments, and I place Dworkin’s and Alexy’s argumentative strategies within this theoretical grid.
In parallel, my interest in transcendental foundationalism led me, in the essay “Etiche del discorso: oggettività e fondazione” (“Discourse Ethics: Objectivity and Foundation”), to discuss the proposal for moral foundation advanced by the “discourse ethics” (Diskursethik) of K.-O. Apel and J. Habermas. Finally, the essay “Regole e autonomia” (“Rules and Autonomy”) also operates at the level of critical discussion: here I address the attempt to ground a connection between law and morality on a transcendental basis developed by George Pavlakos in his book “Our Knowledge of the Law”.
The essays “Inferentialism, Social Practices, and the Connection between Law and Morality” and “The Structure of Social Practices and the Connection between Law and Morality”, written with G. Bongiovanni, A. Rotolo and C. Valentini, instead operate at the level of theoretical proposal. In these works, we attempt to develop a form of “weak connectionism” between law and morality in light of a structural analysis of legal practice.
The Nature of Legal Normativity
The issue of the connection between law and morality also led me in those years to the more general topic of the nature of legal normativity, its conditions of possibility, and its relationship with semantic and epistemic normativity.
The essays “The Claim to Correctness and Inferentialism” and “Inferentialism, Social Practices, and the Connection between Law and Morality”, as well as “The Structure of Social Practices and the Connection between Law and Morality”, also contain a full examination of various problems concerning legal normativity, starting from R. Alexy’s thesis of the “claim to correctness” (Anspruch auf Richtigkeit), moving through an application of R. Brandom’s inferentialism to this thesis, and finally arriving at a more conventionalist perspective, following the discussion proposed by J. Coleman and S. Shapiro in light of M. Bratman’s model of shared cooperative activities. In the essay “Regole e autonomia” (“Rules and Autonomy”), I also develop some remarks on the specific topic of the relationship between legal normativity, semantic normativity and epistemic normativity.
In more recent years, the topic of legal normativity has re-entered my research through three further paths. The first is the ontology of norms and legal powers, especially insofar as law is understood as a system of institutional artifacts capable of producing, modifying and structuring normative positions. The second is that of normative competences, that is, the conditions under which a subject or body may produce valid law. The third is that of the cognitive bases of legal normativity, in which the understanding of norms, powers, institutions and the rule of law is also analysed as a matter concerning the conceptual representation and cognitive capacities of the subjects involved in legal practice.
“A Treatise of Legal Philosophy and General Jurisprudence”
A separate discussion should be devoted to the project “A Treatise of Legal Philosophy and General Jurisprudence”, on which I worked from 2003 to 2017 and for which I was, in particular, assistant editor of Volume 1, “The Law and the Right”, and co-editor, with E. Pattaro, of Volume 12, “Legal Philosophy in the 20th Century: The Civil Law World”, a volume divided into two tomes of about 1,000 pages each, collecting contributions from more than 60 international scholars. The “Treatise”, edited by E. Pattaro and published by Springer, consists of 12 volumes and is divided into a theoretical part and a historical part. The theoretical part, comprising the first five volumes, addresses the main topics of legal philosophy and general legal theory, from the theory of norms to the theory of sources of law, and from the theory of legal argumentation to the theory of legal science. The historical part, comprising 7 volumes, covers the history of legal philosophy from its origins to the present day. All volumes of the “Treatise” are written or edited by internationally distinguished authors, including, among others, F. D. Miller, Jr., G. Postema, A. Peczenik, H. Rottleuthner, G. Sartor, R. Shiner, P. Stein and H. Hofmann.
