Humans have this extraordinary cognitive ability: They imagine inexistent objects, they treat them as if they were real, and by doing so they make them real. They thus give rise to a shared institutional reality that enables them to cooperate in ways that would be impossible otherwise. In this paper, we would like to revisit the account that HLA Hart gives of the practice of collective acceptance that makes a legal system possible. We try to provide an explanation of what (...) Hart calls the ‘internal point of view’, on the basis of experiments on institutional concepts, drawing on the paradigm known as ‘embodied cognition’. Experts and non-experts in law rated the role of several cognitive dimensions for a list of words referring to two kinds of abstract concepts (institutional and theoretical/scientific) and two kinds of concrete ones (food and artifact). Institutional concepts were distinguished into pure-institutional (e.g., ‘contract’, ‘state’, ‘property’) and meta-institutional (e.g., ‘norm’, ‘duty’, ‘justice’). The results provide an empirical account of how our way of thinking about institutions changes as we acquire expertise in the legal field, thus shading light on the cognitive underpinnings of the ‘internal point of view’. (shrink)

Some philosophers of sport have suggested that strategic fouling is acceptable if you pay full compensation. In this paper I will argue that the idea of ‘compensation’ is conceptually inadequate to deal with strategic fouling. Compensation is a legal remedy designed to make the victim of a wrong whole again, i.e. make good the loss or harm they have suffered. But compensation as the analogon between law and games is ill-conceived when applied to strategic fouling. I will suggest another analogon (...) from the law of obligations – restitution – which is more apt to deal with strategic fouling and which shows more clearly why the ‘compensation’ prescribed by the rules often fails to restore the fouled side. (shrink)

In Speech Acts, John Searle argues that institutional facts presuppose, for their existence, the existence of certain institutions (understood as systems of constitutive rules). In this paper I extend Searle’s theory of institutional facts arguing that a further level is needed for the investigation of the structure of institutional reality: the level of meta-institutional concepts. The meta-institutional concepts are concepts that go beyond (Greek: metá) the institutions of which they are conditions of possibility. An example of meta-institutional concept is the (...) concept of game. In a culture which does not have the concept of game, we could move the chess-men according to the rules of chess, we could also perform a castling, but it would be impossible to play chess. (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)

The opposition between nature and culture has always been paradigmatic in the philosophy of society, and in this sense it is certainly striking that, in contemporary theories of collective acceptance in social ontology—theories which actually entail the presence of individual mental content in the form of beliefs—the shaping role of culture has not found significant recognition. However, it cannot but be trivially true that cultural presuppositions play a role in the maintenance and development of beliefs on rules and other kinds (...) of abstract artifacts. But once we recognize that the reality of social institutions is at least culturally-dependent, the question emerges whether there is still room for nature as a possible determinant of social reality. Many authors maintain that there is and argue that there are objective natural features shared by human beings which are necessary conditions to explain the emergence of institutional structures within society. This is a culture-independent relation between nature and social institutions. In this paper, however, I will try to argue that there is another, very peculiar, way in which nature can work as a possible determinant of social reality, a way which is instead culture-dependent. In particular, I will give three examples of this kind of culture-dependent relations—examples about states, corporations, and contracts—and I will introduce a new concept to account for it, that of “institutional mimesis.” I will then provide an explanation of how institutional mimesis can have an impact on the content of collective acceptance by appealing to two influential theories in contemporary cognitive psychology. Finally, I will explain the ontological significance of institutional mimesis using Ian Hacking’s concept of historical ontology. (shrink)

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)