In the last chapter the differing approaches taken by the legal moralist and positivist schools of thought towards the relevance of knowledge of the law was scrutinised: whereas for the latter knowledge was key, for the former it was irrelevant. It was criticised that law was neither a divine gift written and innately understood in our hearts, nor are legislators to be regarded as intrinsically knowing what is right or wrong. We were equally sceptical of the aprioristic and merely rational theory of knowledge grounded exclusively in the model of legal norms. As an alternative to quid sit iuris (what is law), a more sociological- normative perception was proposed. This chapter aims to set out a fresh institutional framework expanding on that proposal by implementing an institutional approach to law and its knowledge. From the institutionalist concept of law here defended, knowledge of the law is not mere understanding of legal norms but the awareness of complex institutional facts and institutional structures and the social order it brings about.
This proposal is based on the theory of social institutions formulated by Searle291 and embraces institutional legal positivist arguments developed by MacCormick292 and Weinberger.293 By doing so, the paper engages with the current trend of some scholars, like Lacey294 or Farmer,295 to take a more sociological approach to legal phenomena. With this structural shift, these scholars bring back sociology and other social sciences from empirical fieldwork to the legal theoretical arena. In the criminal field, and focused in theories of criminalisation, Farmer has also defended the salient relevance “of what makes
291 J. Searle The Construction of Social Reality (1995); J. Searle Making the Social World: The Structure of
Human Civilization (2010)
292 N. MacCormick Institutions of Law: An Essay in Legal Theory (2007). MacCormick “Law as Institutional
Fact” in MacCormick N, and Weinberger O, An Institutional Theory of Law (1986). See also the essays in M. Mar and Z. Bankowski (eds) Law as Institutional Normative Order (2009)
293 O. Weinberger Law, Institution and Legal Politics (1991)
294 See N. Lacey “Institutionalizing Responsibility: Implications for Jurisprudence” Jurisprudence (2013)1:7.
N. Lacey In Search of Criminal Responsibility: Ideas, Interests and Institutions (2016).
the law criminal, or the distinctive character or aims of the criminal law”.296 After asserting
that the current theories of criminalisation have failed “to attend the purpose of criminal
law”, he stresses the unavoidable social functionalist perspective that any theory of
criminalisation must bear. Consequent with this viewpoint, Farmer frames his theory of criminaliszation in the understanding of law as an “institutional normative order”,297 supporting the legal institutional theory of law developed by MacCormick.298 A proposal of this kind, within the boundaries of a “sketchy”299 and lofty purpose of securing the conditions of civility and social peace,300 will verify the relevance of the function in the identification of criminal law qua criminal law, and not only the way the functions are fulfilled. This purposive approach reinforces Lacey’s proposal that sociological changes in the legal phenomena have to have an impact in law’s modality.301 This thesis, grounded in the sources referred to above, attempts to formulate an innovative institutional theory of law that operates as the theoretical framework for a fresh solution for false beliefs.
The research starts by defending the view that modern societies exist within a constellation of institutional facts. For purposes or functions beyond mere biological or physical structures (brute facts), we collectively attribute a certain status to persons, objects or other entities. The institutional structure derived from these status-functions encloses a waterfall of deontic-normative powers that provides status holders with a common reason for action in our practical reasoning. Institutional facts guide us but also disclose to others what they can expect from us. Only within normative frameworks of reciprocal and conventional expectations can we interact, cooperate and trust strangers. But recognition and reciprocal acceptance is not everything. Where some institutions can effectively subsist under the normative structure provided by social habits or conventional expectations, others, in order to achieve their function, need a more formal authority-based
296 L. Farmer “Criminal law as an institution: Rethinking Theoretical Approaches to Criminalization” in A.
Duff, S. Marshall M. Renzo , V. Tadros Criminalization: The Political Morality of the Criminal Law (2014) at p2
297 L. Farmer Making the Modern Criminal Law: Criminalization and Civil Order (2016), Chapter 2 298 See N. MacCormick, Institutions of Law. An Essay in Legal Theory (2007). N MacCormick “Law as
Institutional Fact” in MacCormick N, and Weinberger O, An Institutional Theory of Law (1986). See also the essays in M. Mar and Z. Bankowski (eds) Law as Institutional Normative Order (2009). See also O. Weinberger Law, Institution and Legal Politics (1991); M. la Torre Law as Institution (2010). See also N. Lacey “Institutionalizing Responsibility” Jurisprudence (2013) 1:7
299 L. Farmer Making the Modern Criminal Law: Criminalization and Civil Order (2006) at p26
300 Some authors highlight the descriptive nature of the concept of civil peace and its limited or too nebulous
to provide guidance in the identification of law. See M. Ulväng “Criminal Law and Public Peace” in M. Mar and Z. Bankowski Law as Institutional Normative Order (2009) at pp137-141. See also V. Tadros, “Institutions and Aims” in M. Mar and Z. Bankowski Law as Institutional Normative Order at p93
normative structure in place. These formal/legal rules institutionalise new expectations of these previously informal practices
Thereafter, the chapter explores the uncharted potential connections between trust/trustworthiness and the criminal law. An innovative conception of the deliberation process is at the basis of the link between both notions. Citizens are rational thinkers with the ability to conform their behaviour to reasons, but also to consider the mental life of others in their deliberation.302 We have the capacity to recognise that the deliberation of others will depend on expectations about what we will do. Thus, if we count on the deliberation process of others we can build up our plans based on our expectations of their responsiveness. This is the gist of interpersonal trust. But trust, although grounded in normative expectations, is not enforceable (or it would not be trust). Within specific institutional frameworks, normative expectations also need a mechanism of institutional reassurance to allow the institutional framework to survive. This function is performed by criminal punishment reaffirming institutional trust. Against those expectations whose disruption can jeopardise the institutional configuration of the society, criminal punishment reassures that the institutional framework is still valid even in cases of isolated violations. The legitimation of criminal law in this picture is defined later as the guarantor who secures the institutional identity of the society against those instances of conduct that contravene the general normative model of orientation or guidance in social interaction that the institutional structure defines.
If the main function of the criminal law is neither deterrence nor the justification of punishment, but instead the protection of institutionalised expectations and to reassure the institutional framework, a fresh account of criminal responsibility needs to be deployed. In doing so a particular emphasis should be given to the allocation of status that reshapes the concept of personhood in law. Only when an event happens within the status framework can the status-holder be held responsible for it. Status defines prospectively the responsibility of the holder in two ways: negatively, he is responsible for configuring his ambit of action by avoiding causal processes that, in creating a non-permitted risk, jeopardise the ambit of action or planning of others (neminem laede principle); positively, the holder is responsible for the deficient performance of any institutional function when interacting with others. This structure also embeds the two dimensions of trust: a) trusting
302 This ability is known as the “Theory of Mind” and implies that we are able to attribute mental states to
others (or oneself): we are able to understand that the rest of the members of the society have beliefs, emotions, intentions that are different from one’s own.
somebody and b) trusting somebody in a particular domain. The conclusion of this scheme is a new classification of offences: offences of association and offences of dissociation.
Finally, the research illustrates the distinct ways knowledge of the law is relevant in the conceptual institutional framework proposed here: to interact in any institutional framework, the citizen needs to be aware of its deontic framework. To plan and organise our life around the expectations of others requires a deep knowledge of the social framework and equally the legal norms that shape it. But knowledge is also essential in the attribution of criminal responsibility. Criminal responsibility will be directly attributed when the citizen acts aware of the illegality of his behavior. But, when a lack of knowledge (normative or factual) precludes deliberation by the actor that their behavior could be criminal, the attribution of criminal responsibility can be challenging.