The theory of artifactualism and its perspectives
Artifactualism is a theory of law that develops upon the insights of legal realism and positivism, natural law and criticizes these theories at the same time. In a similar sense with the natural law, the theory of artifactualism recognizes the impossibility of conceiving of law without any reference to the social values that are reflected in, as well as enforced by law. The theory however, suggests that nothing is separate or ‘outside there’ about law. The artifactualists join the legal positivists in their opinion that law is made by human and that more focus should be on the tangible aspects of law. The artifactualists however criticize the legal positivists for basing their quest on the significance of law rather than driving the agency analysis to the obvious conclusions; performing contextual analysis about what people do through law. Some have the opinion that positivists only factor out the elements of human agency which the artifactualists find significant, for example issues such as gender, class and race.
Furthermore, according to the positivists, the essence of law in a sense reflects the assumption made by natural lawyers that something known as law, written with capital ‘L’ exists. This assumption is vehemently rejected by the artifactualists. Instead, they argue that what we have is a system comprising of socially structured norms that are coercively enforced. These laws are interrelated in many ways and are also contingent. In simple terms, ‘laws’ is a word used to describe a very complex system of social forces. Through these arguments, artifactualism develops upon insights that surround realism. Artifactualists however, argue that realism is being much individualistic and is inadequately sensitive the constitutive aspect of law. Realists and artifactualists agree that focus should not be on what judges claim that they do but on what they really do. Artifactualists argue that realism excludes...