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Legislation and legal institutions are related in two
ways. First, most legal institutions exist by virtue of legislative rules.
Secondly, legislation can only take place within the framework of a legal
institution.
To clarify what legal institutions are, attention is paid
to MacCormick's distinction between abstract institutional legal concepts
on the one hand and particular legal institutions exemplifying such concepts
on the other. MacCormick's classification, consisting of institutive rules,
consequential rules, and terminative rules of legal institutions, is extended
with three additional classes, namely, constitutive rules, content rules
and invalidating rules. A test shows that complete legislation constituting
a certain class of legal institution contains rules of all distinguished
classes.
Legislation takes place by appeal to power-conferring
rules that form part of a legal institution. The structure of power-conferring
rules is shown to be:
The expression of legal judgments having certain states
of affairs as their meanings by certain agents following certain procedures
counts as making these states of affairs part of the legal institution
concerned.
This structure answers to Searle's famous formula `x counts
as y in context c'.
Modern legal systems are characterized as nested sets
of legal institutions that are connected by the exercise of power-conferring
rules.
The component parts of legal institutions are classified.
This leads to a classification consisting of (i) declarative legal judgments
presenting legal states of affairs, (ii) prescriptive legal judgments presenting
legal obligations, (iii) directive legal judgments presenting non-mandatory
norms, (iv) assertory legal judgments presenting legally granted facts,
and (v) expressive legal judgments presenting states of mind.
Attention is paid to the manner in which legal institutions
are socially accepted. Lagerspetz's conventionalist method of grounding
the social existence of legal institutions on shared beliefs is critically
examined and rejected.
It is concluded that the classical idea that legislation
would mainly consist of general rules of conduct is far too simplistic.
Modern legislation rather serves to present images of overall institutional
environments that exert pressure to be socially realized. Legislation has
become a form of institutional landscaping in which legal institutions of
different classes are combined to provide fitting institutional environments.
Finally, a classification of legal institutions is proposed
on the basis of a fourfold distinction between subjects, objects, properties
and relations.
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