The 13th biennal collective intentionality conference — august 9–21, 2021
The Immateriality Thesis: A Critical Commentary
Paper discusses the immateriality thesis (IMT), often explicitly assumed in the artifact theory of law (ATL) (e.g., Burazin, Roversi and Tuzet). According to IMT, law is immaterial, e.g., law is not documents, regardless whether printed or electronic, with provisions, nor buildings or other material infrastructure, no matter how strongly legal institutions practically depend on them (consider contemporary judiciary without courtrooms or during blackout). In ATL, law’s existence is understood in terms of immaterial, social, intersubjective states of a general (quantitatively unspecified) consensus in a community regarding law, its system and institutions. Law is mind-dependent semantic construct. It is ‘in thin air’, in-between people – in mental states of mutual agreement and recognition. Such IMT can raise doubts.
IMT seems to be more adequate to oral law than to contemporary developed legal systems. Because of law’s quantity in them and impossibility to keep in minds the entirety of that what was allegedly collectively agreed upon and recognized, law has to be materially mediated and sustained. The written form of law addresses the limited capacity of memory and enables law’s specific independence from people’s thinking. Moreover, contemporary legal institutions in practice do not exist ‘in clouds’, but have (and have to have) appropriate materiality. Is then law really immaterial? What is IMT’s role in ATL?
Perhaps ATL’s ambition is to address only the question “what is the law?” and ATL avoids questions “how law’s existence is possible and maintained?” or “under what circumstances can law function and to what extent?”. Even though “what…?”, “how…?” and “under what circumstances…?” are analytically distinguishable, it may be dubious whether in practical engagement with a given object these issues are separable.
Speaking of practicality: if ATL is also meant as a basis for some practical actions, like law’s reforms, then IMT seems to limit such actions to somehow effectively influencing people’s thinking. In a mass and internally diverse societies with a highly developed legal systems, the idea of changing law through changing people’s thinking seems very demanding and inconsistent with noticeable practice. Often irrespective of community’s members, law is indeed effectively formally changed by legislatures and afterwards it still realizes its goals – people conform. Moreover, one can also change given law not textually, but with something even more explicitly material than amending legal act, like installing CCTV cameras for security purposes.
An alternative to IMT that would take seriously materiality of contemporary law (next to narrower options, like Ferraris’ documentality) will have its problems (e.g., significantly broadening the understanding of the law) and challenges (e.g., if law’s immaterial components are dependent on material components, then what exactly is the relation between them: ontological dependence, grounding or supervenience?). Nevertheless, ATL/IMT may seem as an ‘overly social’ social ontology – it tries to grasp objectively immensely complex entity of law through ultimately narrow categories of inter-human meanings, beliefs and conventions. Meanwhile, some social ontologists themselves (e.g., Elder-Vass) are recognizing the material turn’s call to treat seriously materiality of the social. This context is another reason to focus on IMT.
Michał Dudek
Department of Sociology of Law, Faculty of Law and Administration, Jagiellonian University in Krakow, Poland
Assistant Professor
Main research topics
Sociology of LawSocial TheoryPhilosophy of LawLegal TheorySocial OntologySemiotics
Favorite quote
"Qué?" Manuel, Fawlty Towers
https://jagiellonian.academia.edu/Micha%C5%82Dudekmore about the subject
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Just to reply briefly to our conversation: I don’t think that philosophers are only concerned with capslock LAW. We make observations about law generally that are true of individual laws and then generalize to discuss properties that laws have. So we can look at individual laws like the speed limit, or the tax code, and say: this doesn’t have to be written down and so laws in general need not be written down (although it wouldn’t be practical to have it ALL unwritten of course). Now, you correct me that you are not thinking only about recordings of the law as its materiality but also that we need to capture the other material parts: buildings, electric grids, and the Internet. The problem with including all of these NECESSARY elements as ontological parts of the law itself is then how to individuate particular legal enactments, where the material parts are the same. [Also, this suggests a caution not to argue that merely because a material object is necessary for a given law to exist, that it is therefore ontologically a part of the law.]
Dear Kenneth,
Thank you for additional comment. Sorry for the delay in reacting to it.
Your comment seems to contain 3 specific remarks:
1) when it comes to your first point about inferring some general regularities concerning law on the basis of its real-life examples – I see your point and thank you for clarification. But still, for me it is quite peculiar, if not bizarre, to argue that modern laws do not need to be somehow written down. On the contrary, they have to be written down, not only for the sake of addressing limited capacities of human minds (referring to what we were talking about on Thursday), but also for the sake of ensuring proper dissemination of the rules among the society, which is the necessary but not sufficient condition of these rules’ effectiveness. When I am thinking about your point, I am becoming even more convinced that the difference between us boils down to, i.a., the issue I was suggesting in response to Luka’s remarks: do you believe in information that ‘is’/exists beyond any physical medium? I myself do not believe in it, because it does not and cannot exist, as convicingly argued since the very inception of communication theory (there appears to be no model of communication that would not take into account a channel/medium for the message);
2) I am not sure whether I understand correctly your second point ‘[t]he problem with including all of these NECESSARY elements as ontological parts of the law itself is then how to individuate particular legal enactments, where the material parts are the same’. But when exactly material parts can be regarded perfectly the same, so we would have some problems with distinguishing legal enacments (I presume you mean by them, for instance, specific legal acts or decisions based on them) from each other? In the end, pieces of paper/electronic documents, even though ‘utilize’ the same material infrastructure, they still differ from each other, because they contain different messages, which, in turn, address different things (actions, forbearances etc.) in different context and situations and so on. If that’s the case, then where is the problem with individuation? But again, I am not sure if understand your point correctly;
3) the third point in your comment is on the distinction between given object and (other) objects that are necessary for the former. Yes, there is this and many other similar issues with the idea I am working on/gave an impression in the video presentation. I am actually talking about some of them at the end of it. But again, your distinction looks good only ‘on paper’, becase consider the negative situation, when some (even not all of them) objects that you would deem as only ‘necessary for a given law to exist’ experience some kind of a serious dysfunction. This is not irrelevant to the main object here – the law. On a side note, my point here is even to certain extent supported by the desuetudo principle, according to which law’s existence/subsistence is in fact also in its practice. In other words, you can analytically make a distinction between the object and some other objects-conditions for the former, but this distinction seems to work well in some usual circumstances, when nothing ‘wrong’/’out-of-the-ordinary’ happens. But when you imagine that something goes wrong among the objects you would deem as ‘only’ ‘necessary for a given law to exist’, then the distinction you have in mind – the object (law) and its (proper) ontological parts VS objects that are necessary for the law to exist – stops being clear and ‘stable’. What and why and in what boundary conditions is a part of law and what/why/in what conditions is the thing on which law is broadly understood dependent? Of course, one may response to this that the distinction as such is not problematic here, but the exact object – law – to which it is applied causes problems here. But even if we take something much more ‘concentrated in time and space’ like human being considered as a living organism, your distinction is far from being clear and easily applicable. Using your distinction, is oxygen an ontological part of human being or ‘merely’ something ‘outside’ it, but which is still necessary for it? There is some other issue in your proposition: in your rendition, law proves to be utterly dependent on various ‘non-laws’ and in effect also its capacity to act/make a difference/have an influence on someone/something is dependent on many, many things ‘beyond’ the law. If that’s the case, then the law is an extremely impractical artifact after all, as it itself cannot do much. This brings me to the second idea on the main differences between our positions (next to the information issue above and the things we were talking about on Thursday): the practicality. You seem to draw some line between an object of interest – the law, of course – and the practicality, which you appear to understand through something that lies in fact beyond the law. Your statement ‘this doesn’t have to be written down and so laws in general need not be written down (although it wouldn’t be practical to have it ALL unwritten of course)’ seems to suggest that. Whereas for me, if we want to take practicality seriously, we have to consider law through the lenses of much richer catalogue of ontological parts of law (in comparison to what we may be used to).
In short, I think that the differences between us boil down to some really fundamental ontological assumptions, so fundamental that we may still not be entirely aware of them, but should ‘excavate’ them out of our positions and state them explicitly, so our positions will become clearer for anyone interested in them.
All the best and once again thank you,
Michał
Dear Michal,
I find your talk very interesting. In my fortcoming paper (to be published in The Artifactual Nature of Law, Edward Elgar, 2022) I deal precisely with this topic. I apply Thomasson’s artifactual theory to argue that legal systems should best be conceived as abstract artifacts, i.e., created immaterial objects existentially dependent on a variety of other entities. Legal systems are immaterial, with no spatiotemporal location in the strict sense, and in this sense abstract entities. However, they are located in time and treated by us as created entities (and thus artifacts) that depend on a number of concrete entities for both their coming into existence and remaining in existence. The paper explains the ways in which legal systems existentially depend on legal officials, citizens, legal practice and normative documents.
Best wishes,
Luka
Dear Luka,
I apologize for late response – I did not get any e-mail notification that there is some comment under my paper, so I just noticed it really recently.
Thank you for watching the presentation and I am glad you liked it.
I am looking forward then to this new volume on artifact theory of law and your new paper. Will you be uploading a final draft/preprint version somewhere?
The idea you are writing about – the existential dependence of legal systems (which are immaterial themselves) on various material objects is interesting for many reasons. First, one has to assume and try to justify catalogue of these material objects. Second, this approach invites to consider the exact character of relations between legal system and a specific material entity upon which it is dependent. For instance, one can say at first glance that the relations between normative documents and legal systems are of supervenience – i.e. change in relata 1 entails change in relata 2. However, there will be most likely such relations between legal systems and some of ‘their’ other material objects that will be more adequate for grounding, not for supervenience. Third, if legal systems are dependent on many ultimately different material objects which may be in different metaphysical relations with legal systems, then what about relations between all those material objects?
Obviously, there are many other avenues that your approach suggests. But they do not change the fact that in a sense you treat legal systems as such as ontologically homogeneous – they are mental, semantic constructs and that’s it (I leave here aside the issue whether there is actually such a thing as information that would be/exist beyond any physical medium for itself – it appears to me that those who endorse immateriality thesis believe it; I do not believe in pure/unmediated information). However, we can (and I would say we should) conceptualize law and legal systems as ontologically complex – not equated with, for instance, some mental phenomenon (and only with it), but actually ‘consisting of’ a variety – mental, material, social/artifactual, natural etc. Actually, this distinction between law’s ontological homogeneity and complexity was very important in Polish jurisprudence for some part of the second half of the twentieth century (consider, for instance, Opałek’s The Complexity of Law and of the Methods of Its Study and Wróblewski’s Problems of Ontological Complexity of Law), but nowadays it seems to be unjustifiably forgotten.
Nevertheless, in order for you to remain consistent with your previous conceptualizations of your artifact theory of law you actually had to (in my opinion) choose the option you are writing about – legal systems are (still) immaterial, yet they depend on many things (literal things too). My response is meant only to remind about the possible different way – law/legal systems is/are many things (i.e. the things you would consider as only a ‘scaffolding’ for legal systems, but not parts of it, because legal systems are mental/immaterial, others may consider as nothing else as parts of legal systems, often indispensable parts). Of course, such a standpoint of ontological complexity also suggests some further research avenues, but some of them will most likely be different than those provoked by your approach. For instance, when it comes to similar avenues, one should still specify what entities are/compose legal systems. However, ontological complexity approach appears to be suitable not to fall into the grounding/supervenience problematic. Moreover, it also allows not to assume some specific hierarchy and sequence among the broadly understood objects that are/compose legal systems. In comparison, the thesis that legal systems are „immaterial objects existentially dependent on a variety of other entities” clearly implies some explicit hierarchies and time sequences (what is more fundamental and prior). Needless to say, the task of convincingly establishing such hierarchies and sequences can be quite ungrateful, because, i.a., it may push us towards the chicken–egg-like problem.
Thanks once again for your comment. It provokes to make some tentative distinctions/clarifications, as seen above. It would be great if we could discuss these and other issues during Q&A on Thursday.
All the Best,
Michał