- Ontology of law
- Theory of institutions
- Theory of constitutive rules
- Phenomenology of institutional concepts
- Institutional concepts and metaphors
- Institutional concepts and embodied cognition
The Ontology of Legal Reality and of Constitutive Rules
This is my main research area, which I have been working over the years, and it has so far led to the publication of two monographs—Pragmatica delle regole costitutive (Pragmatics of constitutive rules) and Costituire: Uno studio di ontologia giuridica (Constructing: A study in legal ontology)—as well as to various essays in various national and international journals. Here is the main problem this line of investigation is seeks to solve. Institutional phenomena consist of rules; they exist in virtue of rules; and in certain respects they force a knowledge of rules on us. But how is it that an entire swath of social reality that we grapple with on a daily basis is built by way of rules? How can rules properly create anything, that is, how can they be constitutive? That is what makes this an ontological problem: We are looking at a problem relating to the reality or ontology of institutions.
This is a problem I address by taking an approach that in several ways draws on contemporary social ontology and the work of its leading proponents, most notably John Searle, Raimo Tuomela, Margareth Gilbert, Michael Bratman, and Philip Pettit. On several occasions I have also resorted to the phenomenology of legal reality developed by Amedeo G. Conte.
This inquiry has led me to embrace a pragmatic conception of the rules through which institutions are constituted, a conception that tends to see these rules in the broader context of the social practice in which they are embedded. More to the point, I have worked out a three-dimensional phenomenology of institutional concepts and of the entities these concepts refer to, a phenomenology on which—next to the rule-constituted institutional concepts and the framework they are contained in—we need to also thematize, on the one hand the broader axiological and conceptual context in which this framework is set—a context that typically brings about the existence of meta-institutional concepts—and on the other hand the activity through which this framework is concretely applied, an activity shaped by para-institutional concepts.
In some investigations I have shown how this three-dimensional conception of institutions and their typical concepts makes it possible to specify Hart’s classic “internal point of view” by working in a series of perspectives on law and on the institutions the law is made of.
A Theory of Law as an Artefact
In my investigation of legal ontology and of the rules by which institutional concepts are constituted, I have also worked out a theory of legal institutions understood as immaterial artefacts—a theory of law conceived in light of the contemporary debate on the ontology of artefacts. This an investigation has enabled me to work profitably with Prof. Luka Burazin, of the University of Zagreb, and Prof. Kenneth Einar Himma, of the University of Washington. Specifically, we are now working on a collective work titled Law as an Artefact, due to be published by Oxford University Press.
The theory of law as an artefact I advance is based on an idea I am calling “deliberative history,” the idea that the nature of a legal institution is best understood as the outcome of its own history, and in particular as having evolved through a series of intentional collective states that have formed around a given framework of rules. In some articles, I have tried to show that this approach makes it possible to usefully couple the ontology of artefacts with the ontology of law, but I also arrive at the conclusion that, as illuminating as this approach may be in several respects, the theory of law as an artefact it yields cannot account for every single aspect of the ontology of law.
Experimental Jurisprudence: Institutional Mimesis and Metaphorical Legal Rules
As is bound to happen when one sets out to investigate the artefactual nature of law, the investigation just described led me to a classic problem in the philosophy of law, namely: Is it in any way possible to conceive legal institutions as “natural” artefacts? After all, it is from the idea of “nature” that we get the original institution of legal philosophy, the idea of natural law: the idea that legal institutions bear a connection to the way in which nature works, or again the idea that dike(justice) is connected with the kosmos, with the natural order. So the question arises: Is it possible that the way in which legal artefacts are built and conceptualized is connected with the way in which nature or physical phenomena are built and conceived? Is there a connection between law and (not nature in an objective sense but) the conceptions we form in thinking about nature?
This is a problem I have addressed on the basis of a method I intend to also apply to other problems addressed in my work—the method of the conceptual analysis classically deployed in the analytical philosophy of law, providing a conceptual toolkit that I am in turn applying to the experimental method used in contemporary cognitive psychology. This is a line of investigation I am carrying forward together with Anna Borghi, of the Bologna Department of Psychology and now in the Department of Dynamic and Clinical Psychology of La Sapienza University in Rome; with Luca Tummolini, of the Institute of Sciences and Technologies of the National Research Centre (CNR) in Rome; and with Luisa Lugli, of the Bologna University Philosophy and Communications Department. We have in particular taken the method of so-called embodied cognition—on which any form of conceptualization is based on a pattern of psychomotor action—and applied it to institutional concepts, thus reframing the problem of the relation between legal and natural concepts in terms of conceptual metaphors, that is, in terms of the metaphorical relations that can be seen to hold between nature and law.
As a research group we have published two works on the philosophy of law and on cognitive psychology, on the one hand pointing out some analogies that our conceptualization of legal institutions bear to our conceptualization of artefacts, while at the same time showing that legal artefacts so conceived have some features that distinguish them from abstract nonlegal concepts.
I am seeking for funding to support this investigation, looking to consolidate this research group and establish a laboratory that can focus on the task of applying experimental psychology to law, and which can work from a cross-disciplinary perspective in tackling the key theoretical problems of legal philosophy.