Legal Facts and Dependence on Representations

Abstract

AbstractBarry Smith has recently argued against John Searle’s thesis that institutional facts exist because they are represented as existing in a certain community. Smith argues that institutional facts can exist even though they are not represented as existing and that institutional facts can fail to obtain even though they are represented as obtaining. In this paper it is argued that Smith’s challenge can be met for a certain class of legal facts. I argue that in order to solve the problem posed by Smith, we must distinguish between three different kinds of institutional facts and between three different kinds of representation which sustain their existence.