This article constitutes an attempt to reexamine a crucial issue of legal theory from the perspective of philosophy of language and of social ontology: by analyzing a jurisprudential case recently decided by the U.S. Supreme Court, we explain how Searle's account on rules in The Construction of Social Reality constitutes an important starting point for the clarification of the old jurisprudential debate between conventionalism and interpretivism. In a nutshell, we show that Searle's framework, while strictly conventionalist, makes it possible to (...) conceive of the distinction between the semantic content of rules and their extension, by drawing a parallel with the idea of “deep conventions” as well as with the semantic conventions in natural language. The paper thus touches on the broader problem of the relations between legal concepts and nonlegal values. (shrink)

In this paper, the aim is to explore how there can be a role for expression of affect in illocution, drawing upon some ideas about expression put forward by Karl Bühler. In a first part of the paper, I map some active discussions and open questions surrounding phenomena that seem to involve “expression of affect”. Second, I home in on a smaller piece of that larger puzzle; namely, a consideration of how there may be non-conventional expression of affect. I provide (...) some examples of what I take that to involve and set out some premises for approaching it. In a third section, I motivate such an interest by pointing to a question in speech act theory concerning ‘force conventionalism’. This is whether and how illocution can be performed non-conventionally—that is, whether (at least some) utterances can be communicated with illocutionary force without need of convention. I propose that where expression of affect may occur non-conventionally, it may in turn constitute one important route through which at least some kinds of illocution are achieved. In the fourth part of the paper, I sketch an account of such non-conventional expression of affect for the purposes of illocution, by exploring a broadly Bühlerian account of some affects; namely, that some affects are teleological in character, that coordinations may be involved in their satisfactional states, and that uptake of the expressed affect constitutes one subset of such satisfactional states. That exposition points to the contemporary relevance of the “action theory of expression” proposed by Bühler. (shrink)

Being part of the life of institutions requires a considerable amount of conceptual knowledge. In institutional settings, we must learn the relevant concepts to act meaningfully, and these concepts are internal in a peculiar way, namely, they are strictly relative to the rules of a given institution because they are constituted by those rules. However, institutions do not come out of nothing: They are inscribed in a social setting and this setting determines, at least in a broad sense, what is (...) the nature of the institution. Our social life therefore creates more or less defined contexts for meaningful institutional activities, and these contexts in their own turn involve concepts. In this paper, I address this question by distinguishing between three kinds of concepts relevant for an institution and trying to identify the different relations that these concepts have with constitutive rules. I then proceed to explain how this distinction can improve our understanding of practical reasoning in institutional context. (shrink)

This paper argues that the literal meaning of words in a natural language is less conventional than usually assumed. Conventionality is defined in terms that are relative to reasons; norms that are determined by reasons are not conventions. The paper argues that in most cases, the literal meaning of words—as it applies to their definite extension—is not conventional. Conventional variations of meaning are typically present in borderline cases, of what I call the extension-range of literal meaning. Finally, some putative and (...) one or two genuine exceptions are discussed. (shrink)

In this paper, I focus on the idea that language is a rule‐constituted and rule‐governed practice. This notion has been criticised recently. It has been claimed that, even if linguistic meaning is determined by rules, these rules are not genuinely normative because they do not govern actions within the practice by themselves. It has been emphasised that one needs to consent (e.g., has relevant intention or desire) to be a part of that practice. First, I distinguish between two issues: (1) (...) How do rules come to life? (and the answer to that question is by enactment or communal acceptance), and (2) does being assessed by the standards set by the rules require some form of consent for one's actions to be evaluated by these standards? Then, I demonstrate how, by introducing the notion of “default normativity”, one can defend the idea that there are normative practices that are constituted and governed by rules and that language is one of them. (shrink)

We have taken a look at the rules of games in order to acquire some knowledge concerning constitutive rules and, probably, institutional phenomena in general. In this paper we tried to elaborate a system account of constitutive rules. We claim that all accounts that put emphasis on the form of rules are vulnerable. It appears that constitutive rules are interconnected and always form a system that can be internally differentiated. Thanks to adopting certain qualitative criterion we were able to distinguish (...) central and peripheral constitutive rules. Moreover, that very account makes it possible to distinguish between different types of practices that are determined by types of systems of rules. Secondly, it appears there are three “layers” of games that should not be confused: deep conventions, constitutive rules that establish the game and determine games’ identities, and “rules of efficiency” that are some sort of recommendations as to how to play well. (shrink)

The philosopher David Lewis is credited by many social scientists, including mainstream economists, with having founded the modern (game-theoretical) approach to conventions, viewed as solutions to recurrent coordination problems. Yet it is generally ignored that he revised his approach, soon after the publication of his well-known book. I suggest that this revision has deep implications (probably not perceived by Lewis himself) on the analytical links between coordination, uncertainty and rationality. Thinking anew about these issues leads me to map out an (...) alternative social scientific research programme. The traditional ontological equipment of methodological individualism should be reinforced in order to admit the existence of an “intersubjective” world beside the two familiar worlds: the “objective” world of observable things, and the “subjective” world of expectations and individual beliefs. In particular, language becomes necessary to understand coordination via conventions, rather than the other way round. That has led a group of institutionalist economists and pragmatist sociologists to develop an enlarged model of rationality, no longer isolated from questions of coordination and values. This model is the basis for the “Economics of Conventions”. (shrink)

ABSTRACTEven though many sport philosophers have worked to delineate clear definitions of play and games, typical language usage often conflates the two phenomena and even provides an undue normati...

The most influential theory of law in current analytic legal philosophy is legal positivism, which generally understands law to be a kind of institution. The most influential theory of institutions in current analytic social philosophy is that of John Searle. One would hope that the two theories are compatible, and in many ways they certainly are. But one incompatibility that still needs ironing out involves the relation of the social rule that undergirds the validity of any legal system (H.L.A. Hart's (...) rule of recognition) to Searle's notion of codification: the idea that institutions need official declarations of their constitutive rules in order to enjoy the full benefits of institutions. The incompatibility arises from the fact that, in order to do its institutional work, the basic validity rule must be codified in Searle's sense—yet, given the particular role it has in legal positivism, it may be impossible to codify in the Searlean sense. In this paper I develop the incompatibility in detail, consider and reject consigning the basic validity rule to Searle's “Background” capacities that support institutional facts, and conclude that the best route to eliminating it while doing a minimum of damage to the two theories is to make a slight emendation to Searle's theory of institutions. (shrink)

In regard to the explanation of actions that are governed by institutional rules, John R. Searle introduces the notion of a mental “background” that is supposed to explain how persons can acquire the capacity of following such rules. I argue that Searle’s internalism about the mind and the resulting poverty of his conception of the background keep him from putting forward a convincing explanation of the normative features of institutional action. Drawing on competing conceptions of the background of Heidegger and (...) Wittgenstein, I propose to revise Searle’s conception. The background of institutional agency can only provide a convincing explanation if it includes the context of actions and intersubjective structures of a shared life-world. I suggest that a further development of this idea would lead to the identification of the background with a web of social recognition. (shrink)

There is at least one immediate sense in which legal discourse is perspectival: it qualifies acts and facts in the world on the basis of rules. Legal concepts are for the most part constituted by rules, both in the sense that rules define these concepts’ semantic content and that, in order to engage with legal practice, we must act according to those rules, not necessarily complying with them but at least having them in mind. This is the distinctive perspective of (...) law: however, it would be misleading to think that this is the only perspective we can have in legal discourse. That of rule-constituted legal concepts is the fundamental perspective -- the inevitable presupposition of most legal assertions -- but other perspectives are possible on top of this fundamental background: perspectives on law, stemming from the basic perspective of law. -/- In this paper, I will try to argue that some different perspectives regarding law can be accounted for by analyzing different kinds of concepts that emerge in connection with legal institutions. My argument will consist of three steps as follows. First, I will explain how legal concepts are constituted by rules, referring in this regard to John Searle’s analysis of institutional concepts as it emerges in his Making the Social World, of 2010, and amending this analysis according to some criticisms that in 1986 Neil MacCormick had raised against Searle with specific reference to the legal domain. -/- Second, I will show that there are some kinds of concepts relevant for an institution which are not captured by Searle’s analysis in terms of constitutive rules, even if this is amended according to MacCormick’s criticisms. This I will do by considering the game of chess as a simple system of rule-constituted concepts (concepts such as 'checkmate,' 'bishop,' 'king'). I will consider four examples of perfectly legitimate assertions regarding a match of chess -- these being (1) ‘I won’; (2) 'you made a good attack'; (3) 'you are cheating'; (4) 'you made good use of the first-move advantage,' and I will show that, while the first three assertions can be analyzed in terms of concepts (those of 'victory,' 'attack,' and 'cheating') which are not constituted by the rules of chess but are rather common to several different competitive games, being typical of the broader practice of competitive game-playing of which chess is an instance, the fourth assertion includes a concept (that of 'first-move advantage') which is peculiar to chess, just like a rule-constituted element, but is not constituted by the rules of chess. This analysis will lead to a new categorization of institutional concepts. Apart from rule-constituted institutional concepts, which are the only ones recognized by Searle, in order to account for cases (1), (2), and (3) I will distinguish between three kinds of meta-institutional concepts, namely, goal-oriented, mode-oriented, and value-oriented meta-institutional concepts, and then I will introduce the category of para-institutional concepts to account for case (4). -/- Finally -- and this is the third step of my argument -- I will explain how these different kinds of institutional concepts appear when we adopt different perspectives on the institutional frameworks we deal with. This will lead us to a categorization of possible perspectives regarding law that corresponds to the previous one regarding concepts. There is first a structural perspective regarding the instantiation of institutional elements which clearly involves rule-constituted institutional concepts -- as when we say 'I am making a will.' There is then a teleological perspective regarding the goal of our institutional acts which calls into question goal-oriented meta-institutional concepts -- as when we say 'I wrote that will in order for you to have a distinctive right to my property.' Then, we can adopt a strategical perspective regarding some peculiar ways in which institutional acts can be performed, and this has often to do with mode-oriented meta-institutional concepts -- as when we say 'the Labour Party is making parliamentary obstructionism so that the Government will fall before the enactment of the labour reform,' or 'workers start today a work-to-rule action.' Clearly, we can also adopt an evaluative perspective over institutional facts or acts, and here typically value oriented meta-institutional concepts emerge -- as when we say 'that rule is clearly unjust' or 'that contract is unfair.' Finally, we can limit ourselves to a descriptive perspective on phenomena which are peculiar to a given institutional setting, and here para-institutional concepts are often useful -- as when we say 'the Italian electoral system before 1990 led to a sort of reform paralysis' or 'a strict use of the criterion requiring proof beyond any reasonable doubt can be expected to entail a low conviction rate.'. (shrink)