Defects and failures in legal artifacts

Jonathan Crowe

Research output: Chapter in Book/Report/Conference proceedingChapterResearchpeer-review

Abstract

[Extract]
Much progress has been made in recent years in understanding the role of
functions in defining legal artifacts. Authors such as Luka Burazin, Ken
Ehrenberg, Mark Murphy, Corrado Roversi, and myself have advanced substantive theories of the nature of legal artifacts, including the role of functional attributes in fixing their necessary, characteristic or typical features.
However, confusion still exists in the literature regarding when a functional deficit will render a legal artifact defective or completely remove its legal status.
Let us say that the non-defectiveness conditions of an artifact kind are those features that a token artifact must possess to count as a non-defective example of the kind, while its existence conditions are those features a token artifact must possess to count as a member of the kind at all.
There is, in general, a tendency in the literature not to clearly distinguish these two conditions and therefore some uncertainty about their relationship.
This chapter examines the connection between non-defectiveness and
existence conditions as they apply to legal artifacts. The chapter begins by
distinguishing intended functions and use functions, discussing their respective salience for determining the proper functions of artifacts. It then shows
how an account of the proper function of an artifact can yield conceptually
independent descriptions of its non-defectiveness and existence conditions.
Roughly, an artifact that is not minimally adapted to perform its proper function is defective, while an artifact that is constitutively incapable of performing
its function fails to count as a member of the kind. Next, I flesh out the notion
of constitutive incapability, arguing that it involves assessing the centrality of
an artifact’s properties in fulfilling or defeating the imputed plans of its (actual
or hypothetical) creators. I then show how the theory yields a coherent and
compelling account of defects and failures in legal artifacts.
Original languageEnglish
Title of host publicationThe Artifactual Nature of Law: IVR Studies in the Philosophy of Law and Social Philosophy
EditorsLuka Burazin, Kenneth Einar Himma, Corrado Roversi, Paweł Banaś
Place of PublicationCheltenham
PublisherEdward Elgar Publishing
Chapter3
Pages37-46
ISBN (Print)978 1 80088 591 2
DOIs
Publication statusPublished - 2022

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