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Abstract

This paper has three aims. The first is to explicate what kind of entity legal offices are and what their specific mode of existence amounts to. The second is to explain in virtue of what these offices can be said to be legal. Finally, third, to show the relevance of the actual use of legal offices for their existence. The main argument is that, ontologically, legal offices are best understood as immaterial institutional artifacts. This is because they can be created only if there is collective recognition of the relevant constitutive norms, which confer the status function of legal office, accompanied by the relevant deontic powers, and can continue to exist only for as long as this recognition is maintained. Furthermore, it is argued that so-called derived legal offices (e.g., the legislature and judiciary) are legal in virtue of the legal norms that constitute them, and the so-called original legal office (i.e., the constitution-maker) in virtue of the citizens’ norm of recognition (i.e., in virtue of its being collectively regarded as a legal office by the relevant community). Finally, the paper argues that as institutional artifacts, legal offices can be said to exist only on the condition that they are, at least initially, filled with officials actually carrying out the deontic powers accompanying the offices they hold and for as long as the initial citizens’ collective recognition of the original officials is not withdrawn.

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1 Introduction

1This paper aims to explicate what kind of entity legal offices are and what their specific mode of existence amounts to. That is, it aims to explicate in virtue of what legal offices can be said to exist. Also, it aims to explain in virtue of what these offices can be said to be legal. While the basic idea rests on an antirealist ontological position, according to which artifacts, and thus, per hypothesis, legal offices, depend on the human mind (i.e., they are mind-dependent entities) in the sense that the mental states of the authors of artifacts and the concepts on which these states are based are (at least partly) constitutive of their existence, the paper strives to show the relevance of the actual use of legal offices for their existence.

2The paper first sets out the initial concept of legal office as found in ordinary legal discourse (Section 2). It then makes a distinction between original and derived legal offices to account for the relevant differences between the offices of the first constitution-maker, legislature, and judiciary, particularly regarding the issue of what makes them legal (Section 3). This is followed by the explication of that in virtue of which legal offices can be said to exist and how they should ontologically best be understood (Section 4). Finally, the paper analyzes the way in which legal officials as officeholders, and their carrying out of their deontic powers, can be said to affect the existence of legal offices (Section 5).

2 The concept of legal office

  • 1 See Essert 2013, Katz 2020, and Penner 2020.

3Let me start by listing some paradigmatic examples of legal offices, such as Presidency, legislature, and judiciary, which are sometimes called “public” offices. Some also extend the notion of legal office to such things as ownership and trusteeship, which might be called “private” offices.1

4In ordinary legal discourse, legal offices are spoken of as creations of positive law, i.e., law posited by the norm-authorities (agents who issue legal norms) or customs. For example, the offices of legislature and presidency are created by norms issued by the constituent assembly or the so-called founding fathers (i.e., by the constitution); the offices of tax officer and police are usually created by norms issued by the legislative body or legislators (i.e., by statutory norms). Legal offices are thus norm-based entities. The norms in virtue of which legal offices exist are constitutive norms since they constitute legal offices, i.e., they bring them into existence.

  • 2 On the relationship between legal offices and legal powers, see Burazin 2023.

5Offices are said to characteristically consist in a set of deontic powers, e.g., the powers to make, change, abrogate, identify, apply, or enforce laws.2 The legislature, for instance, consists in the powers to make, change, and abrogate general and abstract legal norms; the judiciary in the powers to identify and apply laws. In fact, one could claim that office is but an “officified” (in analogy to personified) unity of a set of deontic powers.

  • 3 von Wright 1963: 76.
  • 4 Shapiro 2011: 75.

6Furthermore, legal offices are commonly said to have officeholders, i.e., individuals who bear the deontic powers that accompany the office. Norms that constitute offices designate individuals or groups of individuals as their holders and confer on them certain deontic powers, e.g., powers to issue norms for others or to apply and enforce existing norms.3 Thus, norms that constitute offices are also power-conferring norms, i.e., norms that confer the powers of the office on the designated officeholders.4

  • 5 Kelsen 1967: 154.
  • 6 Ibid.
  • 7 Ibid.
  • 8 Ibid.
  • 9 Ibid.

7Individuals or groups of individuals who are to take a certain office are usually qualified in some way by a legal order. They may be qualified by some natural properties, e.g., sex, age, physical or mental health, descent, or moral qualifications, or certain skills.5 However, they are also often determined by the prescribed way in which they are to be called to the office.6 Officeholders can be called to their offices either directly or indirectly.7 They are called to the office directly where a norm refers to an individually determined individual or group of individuals and confers on him, her, or them the deontic powers attending to the office. For example, “if the historically first constitution prescribes: ‘A shall be the head of state’; or: ‘The Constituent National Assembly shall be the assembly of people who actually convened at a certain day at a certain place and actually adopted a definite constitution’”.8 Officeholders are called to the office indirectly where a norm requires a certain act, such as nomination or election, by which an individual or a group of individuals is called to the office.9

8Thus, legal offices can initially be defined as statuses accompanied by the deontic powers to create, apply, and enforce legal norms, that are attached to certain people (officeholders, legal officials) directly or indirectly by an existing legal norm.

3 Original and derived legal offices

  • 10 Here I draw on the distinction between original (or sovereign) and derived norms. See von Wright 19 (...)
  • 11 It might be said to be legal in another sense by reference to the content of its deontic powers, wh (...)

9The legal offices discussed in the previous section might be called derived legal offices.10 A derived legal office is a legal office that is brought into existence by an existing (positive) legal norm, i.e., a norm belonging to a certain legal order. It is derived since its belonging to a legal order depends on preexisting positive legal norms. What makes it legal, at least in one sense,11 is the legal norm that constitutes it. For example, the offices of legislature, presidency, and judiciary are brought into existence by existing legal norms, in principle, norms of the constitution.

  • 12 “If we ask why the constitution is valid, perhaps we come upon an older constitution. Ultimately we (...)
  • 13 Kelsen 1967: 222.

10However, every legal order seems to have an office, which, while it does not depend on the existence of a pre-existing positive legal norm, is still regarded as a legal office. That office is the office of the constitution-maker. The “constitution-maker” is here understood as the maker of the historically first constitution,12 and the constitution is understood in the sense of “the positive norm or norms which regulate the creation of general legal norms”.13 The constitution-maker, as understood here, is by definition the office that consists in the power to issue the norm on the production of other norms of a legal order and, in this sense, the first positive norm of a legal order. That being so, the constitution-maker cannot, by definition, be a derived legal office since it is not brought into existence by any existing positive legal norm. If it were brought into existence by an existing positive legal norm, the norm it issued would not be the first positive norm of a legal order, i.e., the first constitution. It can thus be said that the constitution-maker, at least from the point of view of a legal order, is an original or sovereign office. That is, an office that is not constituted by any pre-existing legal norm, but that enables its holders to constitute other legal offices by issuing constitutive legal norms (i.e., derived legal offices, such as legislature, judiciary, presidency). Of course, that does not imply that the office of the first constitution-maker is itself not constituted by any norm, as will be seen shortly.

  • 14 See Marmor 2011: 47-48.

11The question that now arises is what then makes the original office legal? What makes it possible to identify holders of the original office as legally relevant agents that exercise their deontic powers of law-creation? What makes their deontic powers legally significant? There are several theoretical accounts that presuppose that there must be a certain normative framework on the grounds of which the original office can be interpreted as a legal office, the deontic powers it consists in as legal powers, and the actions of its holders as legal acts.14

12According to Kelsen’s theory of law, the norm providing the normative grounds of the original legal office (i.e., the office of the constitution-maker) is the basic norm (Grundnorm). The basic norm is the norm that ascribes the meaning of the legal norm to the act of the (first) constitution-maker (i.e., to the act of issuing the first constitution) by determining the constitution-maker as the organ authorized to issue the first constitution, and thus establishing the office of the constitution-maker. In Kelsen’s words:

  • 15 Kelsen 1967: 154. The parts omitted are those where Kelsen states that a constitution can also come (...)

If by the constitution of a legal community is understood the norm or norms that determine how (that is, by what organs and by what procedure – through legislation or custom) the general norms of the legal order that constitute the community are to be created, then the basic norm is that norm which is presupposed when […] the constitution-creating act consciously performed by certain human beings, is objectively interpreted as a norm-creating fact; if […] the individual or the assembly of individuals who created the constitution on which the legal order rests, are looked upon as norm-creating authorities.15

  • 16 Kelsen 1967: 210.
  • 17 Ibid.
  • 18 See Bindreiter 2001: 149-151.

13The basic norm is, according to Kelsen, a presupposed norm, and it can be presupposed only if a legal order becomes by and large socially efficacious, meaning that laws are issued by empowered law-creating organs and applied by empowered law-applying organs or obeyed by citizens.16 If “the old constitution loses its effectiveness and the new one has become effective, the acts that appear with the subjective meaning of creating or applying legal norms are no longer interpreted by presupposing the old basic norm, but by presupposing the new one”.17 Although Kelsen was not always clear regarding who presupposes the basic norm, and changed his views over the years, I side with the claim that, according to Kelsen, it is law-applying organs that presuppose the basic norm, in virtue of which the constitution is legally binding and the constitution-creating act is a genuine legal act.18

  • 19 Hart 1994: 256.

14According to Hart's theory of law, the norm that provides the normative grounds of the original legal office, i.e., the office of the (first) constitution-maker, is the rule of recognition. The rule of recognition is the rule that specifies the criteria of validity in a given legal system. It is not an enacted, positive legal rule, but “a form of judicial customary rule existing only if it is accepted and practiced in the law-identifying and law-applying operations of the courts”.19

  • 20 Hart 1994: 293.
  • 21 Ibid.
  • 22 Ibid.

15Hart criticizes Kelsen’s view that one has to presuppose the basic norm that prescribes that the first constitution, or those who laid it down, ought to be obeyed. He argues that if the constitution is “a living reality in the sense that the courts and officials of the system actually identify the law in accordance with the criteria it provides, then the constitution is accepted and actually exists”.20 Therefore, Hart claims, “it seems a needless reduplication to suggest that there is a further rule to the effect that the constitution (or those who ‘laid it down’) are to be obeyed”.21 Thus, according to Hart, if the first constitution is efficacious, i.e., if those who are empowered to enact general legal norms (legislators) actually enact them, and if those who are empowered to apply them (courts) actually apply them, and to apply them they first identify them as legally valid norms, then one can speak of the practice of officials as constituting a customary rule “that certain criteria of validity (e.g., enactment by the Queen in Parliament) are to be used in identifying the law”.22 By setting out the criteria for identifying the rules of the system as legally valid, the rule of recognition simultaneously makes the acts of certain entities legally significant and empowers these entities to carry out the acts that produce legally valid rules. In that sense it can be said that the rule of recognition establishes legal offices and empowers the holders of these offices (i.e., officials) to carry out certain actions. By referring to acts such as the (first) constitution, the rule of recognition makes the first constitution legally valid and, presumably, those carrying out these acts, i.e., the original or sovereign power, legally empowered to do so.

  • 23 Burazin 2016 and Burazin 2018.

16According to my artifact theory of law (which is expounded elsewhere),23 the office of the constitution-maker is constituted by the norm of recognition, which itself is constituted by the practice of citizens (in the sense of members of the relevant community) recognizing the office and office holder. Citizens (including legal officials) are those who, by their collective recognition, impose the institutional status of first or original legal office on certain people, and in doing so confer on them the deontic powers to issue the norm or norms that regulate the creation of general legal norms (i.e., norms on legislation). In this sense it can be said that the members of the relevant community are the authors of the office of the first constitution-maker and of legal officials as its holders.

  • 24 Cf. Lagerspetz 1995: 15.
  • 25 I speak of social practice “constituting” a norm in the sense that a customary norm is constituted (...)
  • 26 On the conceptual framework (which consists in at least an understanding of what makes someone a le (...)

17Although certain people can define themselves as “first constitution-makers” by agreeing on some criteria for having this status, they do not have that institutional status unless collectively recognized as such by a relevant com­munity (a community in respect of which they carry out their deontic powers, which follow from their status of the first constitution-makers).24 Citizens’ collective recognition of the original officials represents their social practice of regarding certain people as their officials. As a social practice resting on social reasons for action (recognizing certain people as officials since others recognize them as such and are expected to do so), it constitutes a social norm of recognition.25 Apart from being a social norm, it is a double constitutive norm in that it constitutes the institutional status of the original legal office and makes the conceptual framework for an instantiation of their legal system, which, on the basis of the division of labour, is carried out by both the original and the derived legal officials setting the criteria of identification of the sources of law in a relevant community.26 Thus, according to my artifact theory of law, the office of the constitution-maker is a legal office not because it is created by law or recognized as such through the practice of only legal officials, but because it is collectively regarded as a legal office by citizens.

18To sum up, like Kelsen’s basic norm and Hart’s rule of recognition, the citizens’ norm of recognition is not an enacted, positive legal norm. Unlike Kelsen’s basic norm, which is a presupposed norm, but like Hart’s rule of recognition, the citizens’ norm of recognition is a social norm. Finally, unlike both Kelsen’s basic norm, which is presupposed by officials, and Hart’s rule of recognition, which is constituted by the practice of officials, the citizens’ norm of recognition is constituted by the practice of citizens.

4 Ontology of legal offices

  • 27 See Hilpinen 2011.

19Legal offices are not natural entities like water, gold, and tigers. Rather, they are best understood as social constructions. They are social constructions in that they are created by humans, who obviously create them for some purpose. The purpose of legal offices is reflected in the deontic powers they carry, i.e., in the powers to identify, create, and apply law. Generally, one can say that the purpose of legal offices is to enable individuals to identify, create, and apply law, which they could not do only in virtue of their physical structure. The fact that they are created by human authors and are created for some purpose makes them artifacts, according to the classic definition of artifacts.27

  • 28 For summary of Searle's basic conceptual apparatus see, Searle 2010: 6-11.
  • 29 In Section 2, I used the direct/indirect distinction with respect to the ways officeholders can be (...)

20Drawing on Searle’s theory of social construction,28 one can define a legal office as the status function carrying the relevant deontic powers, which is brought into existence and imposed on an individual or a group of individuals by (either direct or indirect) collective recognition29 of the relevant constitutive rule. The fact that they are norm-based and require collective intentionality for their existence (meaning that they can be created only if there is collective recognition or acceptance of the relevant constitutive norms that confer the status function of legal office, accompanied by the relevant deontic powers, and can continue to exist only for as long as this recognition is maintained) makes legal offices institutional artifacts.

  • 30 Burazin 2018: 123

21It is here useful to introduce a distinction between different types of (con­stitutive) norms by which people collectively impose the institutional status of legal office. As I argued elsewhere,30 a distinction can be drawn between codified or explicit and uncodified or implicit norms of rec­ognition, as well as between general and individual norms of recognition. Codified or explicit norms of recognition are norms that are explicitly posited and formulated by some human authority and are, at least indirectly (through the recognition of the original legal officials and of what they create as law), collectively recognized by citizens. Uncodified or implicit norms of recognition are norms that are constituted solely by the social practice of col­lective recognition. Uncodified or implicit norms of recognition are, in fact, so­cial norms. General norms of recognition are norms that constitute a type-institutional artifact and can be formulated as follows: For any x, we collectively recognize that if x meets certain conditions C, then x counts as y. Individual norms of recognition are norms that constitute a token-institutional artifact (or an instantiation of a type-institutional artifact) and can be formulated as follows: Of a particular (pre-existing) entity e, we collectively recognize that e counts as y.

  • 31 According to Searle, this would be the case where no constitutive rule exists and, thus, a pre-inst (...)
  • 32 Cf. Tuomela 2009: 159.

22Let us now turn to the application of these norms to the original (or first) and derived legal offices. The historically first legal office, i.e., the office of the first constitution-maker, of a particular legal system is constituted by the collective recognition of an uncodified or implicit individual constitutive norm.31 A relevant community collectively recognizes a certain group of people as their constitution-makers, thus imposing on them the institu­tional status of the office of constitution-maker with the corresponding deontic power to issue the norm on the production of other general norms of the relevant legal order. All subsequent legal offices are (in prin­ciple) constituted by the codified or explicit general constitutive norm posited either by the holders of the historically first legal office (e.g., through a constitutional norm) or the holders of derived legal offices (e.g., through a statutory norm). However, even in the case of derived legal offices, there must be at least an informal, uncodified, or implicit collective recognition by citizens, which ensues from their initial rec­ognition of the legal office of the first or original officials and their corresponding deontic powers (including the power to codify the norms which constitute derived legal offices and on the basis of which the holders of these offices are elected or appointed). This is because codification cannot be socially efficacious if a legal system as a whole lacks a certain degree of informal collective recognition by a relevant community.32

  • 33 Although a separate direct collective recognition by citizens of derived legal offices is not a nec (...)

23By collectively recognizing certain people as their original legal officials, members of a relevant community ascribe to them a deontic power to create law. However, since citizens have collectively recognized that certain people are their legal officials and have thereby collectively recognized that that what officials create as law is law, they are committed to the fact that certain people are their officials and that what they create as law is the law of their community. In so doing, they are also committed to participating in a legal practice that was conceptually made possible by the practice of officials. That is, once these norms have been identified as legal norms by the officials of a legal system, citizens are committed to complying with them and to using them when regulating their mutual relationships. This shows why a separate direct recognition by citizens of institutional facts or institutions created within an existing institution, such as derived legal offices and their officeholders, is not necessary.33 By (directly) collectively recognizing the institution of the first constitution-maker and (indirectly) a legal system, one has already committed himself/herself to recognizing particular norms created by the holders of derived legal offices as legally valid norms of his/her legal system.

  • 34 Cf. Searle 1995: 41–51.

24In the case of both original and derived legal offices, legal offices are created by the collective recognition of the constitutive norms on the basis of which humans impose the status function of legal office on existing persons.34 In the case of original legal office (i.e., the office of the first constitution-maker), the office is created by a direct collective recognition of the (citizens’) social norm of recognition and, in the case of derived legal offices, by an indirect, implicit collective recognition by the citizens of the (officials’) constitutive legal norms. Also, in both these cases, legal offices are ontologically immaterial, since they are nothing but a status function, and this status function, as mentioned, consists in a set of deontic powers (i.e., the powers to identify, create, and apply law), which is an abstraction. Thus, one can say that legal offices are abstract or immaterial institutional artifacts.

  • 35 Kelsen 1945: 124.

25The difference between original and derived legal offices is such that, in the case of the former, officeholders are called to their offices directly since the citizens’ norm of recognition refers to an individually determined individual or group of individuals, whereas in the case of the latter, officeholders are called to their offices either directly or indirectly depending on whether the officials’ constitutive legal norms require a certain act, such as nomination or election, by which an individual or a group of individuals is called to the office. Another difference relates to the content of deontic powers accompanying the different offices. While derived legal offices can consist in all sorts of legal powers, like the power to create, apply, or enforce legal norms, the office of the constitution-maker consists, by definition, in only the law-creating power or, more specifically, the power to issue the first constitution. Here again the constitution is understood in Kelsen’s sense of a set of norms that regulate the process of legislation in a given legal system, i.e., “the creation of the general legal norms, in particular the creation of statutes” (the constitution in the material sense).35

26To summarize, the fact that legal offices have human authors (members of a relevant community), who create them for some purpose (to make, identify, and apply law), makes them artifacts. The fact that they are rule-based (constituted by the social norm of recognition or the positive constitutive legal norm) and require collective recognition (by members of a relevant community) for their existence, makes them institutional. The fact that they are a status function consisting in a set of deontic powers makes them immaterial. Thus, we can say that, ontologically, legal offices are immaterial institutional artifacts.

5 Offices, officials, and efficacy

27Although the original legal office is constituted by norms, it cannot exist without its officeholders and their carrying out their deontic powers, and without certain other legal offices and their officeholders carrying out their deontic powers. That is, in order for the original legal office to exist in the relevant sense, it is not sufficient that it be constituted by a norm. The relevant norm can determine only the intended character of the institutional artifact and thus create its concept. The actual existence and the actual character of the institutional artifact depend on whether its deontic powers are actually used. This follows from all of the above discussed explanations of what constitutes the office of the first constitution-maker.

  • 36 Kelsen 1967: 210.

28According to Kelsen, the basic norm, which empowers an individual or a group of individuals to create the first constitution and thus constitutes the office of the first constitution-maker, is presupposed only if the first constitution is efficacious. The first constitution is efficacious if an individual or a group of individuals empowered by the constitution actually issued the first constitution, the legislative authority empowered by the constitution actually issues laws, and these laws in turn are actually applied by law-applying organs, and finally, laws are obeyed by people.36 Therefore, the office of the constitution-maker exists in the relevant sense, i.e., as a legal office, only if the holders of this office exist, if they carry out their deontic power of issuing the first constitution, if the office of legislature and its holders (legislators) exist, if legislators enact laws, if the office of judiciary and its holders (judges) exist, if judges apply laws, and if people obey laws.

29The same conclusion follows from Hart’s explanation of what constitutes the office of the first constitution-maker. The rule of recognition, which establishes the office of the first constitution-maker, exists only if there is an existing practice of identifying and applying the first constitution (and other sources of law) by law-applying organs. This, again, presupposes that the holders of the office of the constitution-maker actually enacted the first constitution and thereby established the office of legislature, that legislators are called to their office, and that they carry out their power of issuing general legal norms.

30According to my artifact theory of law, the office of the first constitution-maker is constituted by citizens’ collective recognition of an uncodified or implicit individual constitutive norm. Since individual constitutive norms constitute the relevant status by ascribing this status to particular pre-existing individuals, the citizens’ norm of recognition presupposes the existence of certain individuals who are collectively recognized by citizens as the first constitution-makers and their legal officials. Since for an institutional artifact’s actual existence its deontic powers must be carried out, there would be no first constitution-maker if it did not issue the first constitution and thereby did not establish the office of legislature. Also, the function of issuing the first constitution is not merely to establish the office of legislature, but also to fill this office with individuals who will carry out their deontic powers of producing general legal norms. If the office of legislature, established by the first constitution, were never filled and its officeholders never issued any general legal norms, one could at best say that some people, i.e., the purported constitution-makers, put forward a proposal that something be the first constitution. Also, if the purported legislators issued some general norms, and these were never applied by the law-applying organs, one could at best say that some people, i.e., the purported legislators, put forward a proposal that some norms be legal norms of their purported legal order.

  • 37 Katz 2020: 269.
  • 38 On institutional gaps see, Romano 1925: 7-10.
  • 39 Guastini 2014: 166.

31This suggests a slight qualification of the claim that “offices are always capable of vacancy because they are impersonal positions of authority separable from the officeholder”.37 This qualification is in order with respect to both original and derived legal offices. The office of the first constitution-maker can never be vacant, or in other words, there can never be an institutional gap with regard to the office of the first constitution-maker.38 For the office of the first constitution-maker to come into existence, there have to be certain people who are recognized as holders of the office. Also, since the deontic power of issuing the first constitution is, by definition, exhausted by the carrying out of the act of issuing the first constitution,39 the problem of the continued existence of the office of the first constitution-maker and its potential vacancy does not arise. With respect to coming into existence, the same holds for the offices of legislature and judiciary. If the offices of legislature and judiciary are not filled initially, one might claim that, in fact, no legal offices exist since no deontic powers accompanying these offices were carried out. However, the offices of both legislature and judiciary can indeed become vacant without ceasing to exist as long as there exists a norm regulating how the officeholders are to be called to their office. This is because in both cases it is possible (and indeed is often the case) that their officeholders are called to the office indirectly and their deontic powers are not exhausted by being carried out.

32Thus, legal offices, as institutional artifacts, can be said to exist in virtue of their constitutive norms, which are collectively recognized by members of a relevant community, on the condition that they are, at least initially, filled with officials actually carrying out the deontic powers accompanying the offices they hold and for as long as the initial citizens’ collective recognition of the original officials is not withdrawn.

6 Conclusion

33This paper aimed to explain the nature of legal offices in terms of the artifact theory of law. According to this theory, legal offices are status functions carrying relevant deontic powers, which are brought into existence and imposed on an individual or group of individuals by (either direct or indirect) collective recognition of the relevant constitutive rules. Since legal offices have human authors (members of a relevant community), who create them for some purpose (to make, identify, and apply law), they are artifacts. Since they are norm-based (constituted by the social norm of recognition or the positive constitutive legal norm) and require collective intentionality for their existence, they are institutional artifacts. Since they are status functions, consisting in a set of deontic powers (i.e., the powers to identify, create, and apply law), they are immaterial institutional artifacts.

34To account for the relevant differences between different types of offices, e.g., the offices of the first constitution-maker, legislature, and judiciary, the paper introduced a distinction between original and derived legal offices. According to this distinction, derived legal offices are legal offices that are brought into existence by existing (positive) legal norms (i.e., norms belonging to a certain legal order), while original legal offices are those that do not depend on the existence of such norms. With regard to what makes an office legal, the paper argued that derived legal offices (such as legislature or judiciary) are legal because they are constituted by a (positive) legal norm, while original legal offices (the first constitution-makers) are legal because they are constituted by the social norm of recognition, which itself is constituted by the citizens’ collective recognition of certain people as legal officials and as having deontic powers to issue the norm on legislation. With regard to the type of constitutive norms that bring offices into existence, the paper argued that original legal offices are constituted by uncodified or implicit individual constitutive norms, while derived legal offices are (in principle) constituted by codified or explicit general constitutive norms posited either by the holders of the historically first legal office (e.g., through a constitutional norm) or the holders of derived legal offices (e.g., through a statutory norm). With regard to the collective recognition of the relevant constitutive norms, the paper argued that original legal offices are created by a direct collective recognition of the (citizens’) social norm of recognition, while derived legal offices are created by the citizens’ indirect, implicit collective recognition of (the officials’) constitutive legal norms. Furthermore, the paper argued that in the case of original legal offices, officeholders are called to their offices directly, since the citizens’ norm of recognition refers to an individually determined individual or group of individuals, while in the case of derived legal offices, officeholders are called to their offices directly or indirectly, since in some cases the officials’ constitutive legal norms require a certain act, such as nomination or election, by which an individual or group of individuals is called to the office. Finally, the paper argued that while derived legal offices can consist in all sorts of legal powers, like the power to create or apply or enforce legal norms, the office of the constitution-maker consists, by definition, in only the law-creating power or, more specifically, the power to issue the first constitution.

35Finally, the paper analyzed the way in which legal officials as officeholders, and their carrying out of deontic powers conferred on them, can be said to affect the existence of legal offices. The paper concluded that legal offices, as institutional artifacts, can be said to exist in virtue of their constitutive norms, which are collectively recognized by members of a relevant community, on the condition that they are, at least initially, filled with officials who actually carry out the deontic powers accompanying the offices they hold and for as long as the initial citizens’ collective recognition of the original officials is not withdrawn.

Acknowledgment.— I would like to thank two anonymous reviewers for their helpful comments and suggestions. An earlier version of this paper was published in Spanish as L. Burazin (2021). Funciones jurídicas, Doxa. Cuadernos de Filosofía del Derecho, 44, pp. 145-157, https://doi.org/10.14198/DOXA2021.44.06.

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Marmor, A. (2011). Philosophy of Law. Oxford University Press.

Penner, J. (2020). Private law offices. The University of Toronto Law Journal, 70 (Issue supplement 2), 299-314.

Romano, S. (1925). Osservazioni sulla completezza dell’ordinamento statale. Presso l’Università degli studi.

Searle, J. R. (2010). Making the Social World. The Structure of Human Civilization. Oxford University Press.

Shapiro, S. (2013). Legality. Belknap Press: An Imprint of Harvard University Press.

Thomasson, A. L. (2009). Social Entities. In R. L. Poidevin (Ed.), The Routledge Companion to Metaphysics (pp. 545–554). Routledge.

Tuomela, R. (2002). The Philosophy of Social Practices: A Collective Acceptance View. Cambridge University Press.

von Wright, G. H. (1963). Norm and action: a logical enquiry. Routledge & Kegan Paul.

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Notes

1 See Essert 2013, Katz 2020, and Penner 2020.

2 On the relationship between legal offices and legal powers, see Burazin 2023.

3 von Wright 1963: 76.

4 Shapiro 2011: 75.

5 Kelsen 1967: 154.

6 Ibid.

7 Ibid.

8 Ibid.

9 Ibid.

10 Here I draw on the distinction between original (or sovereign) and derived norms. See von Wright 1963: 199 and Guastini 2014: 115-116.

11 It might be said to be legal in another sense by reference to the content of its deontic powers, which are the powers to issue, apply, and enforce legal norms.

12 “If we ask why the constitution is valid, perhaps we come upon an older constitution. Ultimately we reach some constitution that is the first historically and that was laid down by an individual usurper or by some kind of assembly”. Kelsen 1945: 115.

13 Kelsen 1967: 222.

14 See Marmor 2011: 47-48.

15 Kelsen 1967: 154. The parts omitted are those where Kelsen states that a constitution can also come into existence through custom, since in that case one would not speak of the office of the constitution-maker but of individuals who by their behaviour constitute the constitution-creating custom. There would be no office of the constitution-maker since one does not usually speak of an office if an individual or a group of individuals has not been called to the office. See Kelsen 1967: 155.

16 Kelsen 1967: 210.

17 Ibid.

18 See Bindreiter 2001: 149-151.

19 Hart 1994: 256.

20 Hart 1994: 293.

21 Ibid.

22 Ibid.

23 Burazin 2016 and Burazin 2018.

24 Cf. Lagerspetz 1995: 15.

25 I speak of social practice “constituting” a norm in the sense that a customary norm is constituted by a regularity of behaviour accompanied by the relevant normative attitude.

26 On the conceptual framework (which consists in at least an understanding of what makes someone a legal official) that citizens establish through their social norm of recognition and its relation to the officials’ norm of recognition, and officials as the primary “authors” of a particular instantiation of a legal system, see Burazin 2018: 126-129.

27 See Hilpinen 2011.

28 For summary of Searle's basic conceptual apparatus see, Searle 2010: 6-11.

29 In Section 2, I used the direct/indirect distinction with respect to the ways officeholders can be called to their offices. Here, I use it with respect to the ways collective recognition can refer to its object. Although the two distinctions are used in the paper independently, there might be some connection between the two (e.g., direct calling to the office of the first constitution-makers is done through direct collective recognition of a certain group of people as constitution-makers by the relevant community). I thank one of the reviewers for pointing this out.

30 Burazin 2018: 123

31 According to Searle, this would be the case where no constitutive rule exists and, thus, a pre-institutional example of the same logical structure as constitutive rules. It is merely an ad hoc col­lective recognition that something has a certain status and a step toward codification in the form of rules. See, Searle 2010: 19–21. See also, Thomasson 2009: 548. According to her typology of constitutive rules, in these cases one is dealing with singular constitu­tive rules, on the basis of which institutional objects are created on a token-by-token basis.

32 Cf. Tuomela 2009: 159.

33 Although a separate direct collective recognition by citizens of derived legal offices is not a necessary existence condition for derived legal offices, it is necessary that citizens (at least implicitly) maintain their initial collective recognition of the first constitution-maker for the legal system as a whole, and thus also derived legal offices, to exist. And the maintenance of the initial collective recognition is manifested in citizens generally complying with the norms created in the exercise of deontic powers by the holders of derived legal offices. On social validation of citizens’ collective recognition with respect to the existence of a legal system, see Burazin 2018: 132-134.

34 Cf. Searle 1995: 41–51.

35 Kelsen 1945: 124.

36 Kelsen 1967: 210.

37 Katz 2020: 269.

38 On institutional gaps see, Romano 1925: 7-10.

39 Guastini 2014: 166.

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References

Electronic reference

Luka Burazin, “Legal office”Revus [Online], 50 | 2023, Online since 15 June 2023, connection on 02 October 2023. URL: http://journals.openedition.org/revus/9539; DOI: https://doi.org/10.4000/revus.9539

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About the author

Luka Burazin

Associate Professor of Legal Theory, University of Zagreb Faculty of Law (Croatia).

Address: Trg Republike Hrvatske 14, 10000 Zagreb

E-mail: lburazin(at)pravo.hr

By this author

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