Many philosophers think that games like chess, languages like English, and speech acts like assertion are constituted by rules. Lots of others disagree. To argue over this productively, it would be first useful to know what it would be for these things to be rule-constituted. Searle famously claimed in Speech Acts that rules constitute things in the sense that they make possible the performance of actions related to those things (Searle 1969). On this view, rules constitute games, languages, and speech (...) acts in the sense that they make possible playing them, speaking them and performing them. This raises the question what it is to perform rule-constituted actions (e. g. play, speak, assert) and the question what makes constitutive rules distinctive such that only they make possible the performance of new actions (e. g. playing). In this paper I will criticize Searle’s answers to these questions. However, my main aim is to develop a better view, explain how it works in the case of each of games, language, and assertion and illustrate its appeal by showing how it enables rule-based views of these things to respond to various objections. (shrink)

In this paper, we provide an analysis of the concept of legal personality and discuss whether personality may be conferred on artificial intelligence systems (AIs). Legal personality will be presented as a doctrinal category that holds together bundles of rights and obligations; as a result, we first frame it as a node of inferential links between factual preconditions and legal effects. However, this inferentialist reading does not account for the ‘background reasons’ of legal personality, i.e., it does not explain why (...) we cluster different situations under this doctrinal category and how extra-legal information is integrated into it. We argue that one way to account for this background is to adopt a neoinstitutional perspective and to update the ontology of legal concepts with a further layer, the meta-institutional one. We finally argue that meta-institutional concepts can also support us in finding an equilibrium around the legal-policy choices that are involved in including (or not including) AIs among legal persons. (shrink)

Although the notion of constitutive rule has played an important role in the metaphysical debate in social and legal philosophy, several authors perceive it as somewhat mysterious and ambiguous: the idea of a specific kind of rules that are supposed to be “magically” constitutive of reality seems suspicious, more a rationalistic fiction than a genuine explanation. For these reasons, reductionist approaches have been put forward to deflate the explanatory role of this notion. In this paper, I will instead try to (...) defend constitutive rules. My thesis is that the notion of constitutive rule is explanatorily helpful because it gives a complete account of an important phenomenon in the social and legal domain, namely, that of artifactual entities endowed with statuses that can have emergent normative properties. Conceiving of these entities as rule-constituted artifacts is an important part of what H. L. A. Hart called “the internal point of view” toward law, and for this reason constitutive rules should be included in an explanation of that point of view as an integral part of the life of institutions. The structure of my argument will be as follows. First, I will provide an example of an important phenomenon in the internal point of view, namely, the fact that individuals can have normative reactions not about the specific regulation of an institution but about its underlying purpose and rationale—what in the legal domain is called the ratio of a norm. Then I will identify two reductionistic approaches on constitutive rules. The first approach is exemplified by Brian Epstein’s idea that the phenomena explained by constitutive rules are better explained in terms of metaphysical (grounding/anchoring) relations. The second kind of reductionism is instead exemplified by the idea (held by several authors, among whom Alf Ross, Riccardo Guastini, Frank Hindriks, and Francesco Guala) that the phenomena explained by constitutive rules can be accounted for in terms of regulative rules plus a certain terminology. I will try to show that neither of these approaches can explain normative reactions to the ratio of an institution from an internal point of view: While the first cannot explain the fact that the reaction is strongly normative, the second cannot explain the fact that the reaction is about the ratio of a normative entity. Constitutive rules can instead explain both things and should be preserved as an important notion for the analysis of institutional ontology. By way of constitutive rules we create something: immaterial, rule-based institutional artifacts that can have emergent normative properties. (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)

Cet article s'appuie sur la pensée de Wittgenstein pour comprendre comment des règles économiques agissent. L'étude (1993-2000) d'un Atelier de réparation de la RATP dans lequel une nouvelle règle de rendement a été introduite en 1993 met en évidence trois conclusions. Tout d'abord, dans la sélection des tâches, les opérateurs n'appliquent pas les règles de façon mécanique ; ils n'interprètent pas non plus les règles en faisant table rase des usages. Nos observations montrent que « suivre la règle est une (...) pratique ». En second lieu, les équipes développent des stratégies différentes pour obtenir la prime, ce qui illustre une autre thèse de Wittgenstein : « La signification de la règle se constitue dans l'usage. » Enfin, les opérateurs s'appuient sur les règles de l'usage pour trouver un certain usage de la règle. (shrink)

According to an influential hypothesis, the speech act of assertion is subject to a single 'constitutive' rule, that takes the form: "One must: assert that p only if p has C". Scholars working on assertion interpret the assumption that this rule is 'constitutive' in different ways. This disagreement, often unacknowledged, threatens the foundations of the philosophical debate on assertion. This paper reviews different interpretations of the claim that assertion is governed by a constitutive rule. It argues that once we understand (...) the full import of assuming that assertion is governed by a constitutive rule, it becomes clear that some fundamental assumptions of the current debate are mistaken, and others unwarranted. (shrink)

There is a fundamental disagreement about which norm regulates assertion. Proponents of factive accounts argue that only true propositions are assertable, whereas proponents of non-factive accounts insist that at least some false propositions are. Puzzlingly, both views are supported by equally plausible (but apparently incompatible) linguistic data. This paper delineates an alternative solution: to understand truth as the aim of assertion, and pair this view with a non-factive rule. The resulting account is able to explain all the relevant linguistic data, (...) and finds independent support from general considerations about the differences between rules and aims. (shrink)

There are two questions I would like to address in this article. The first and main question is whether there are rules of recognition, along the lines suggested by H.L.A. Hart. The second question concerns the age-old issue of the autonomy of law. One of the main purposes of this article is to show how these two issues are closely related. The concept of a social convention is the thread holding these two points tightly knit in one coil. Basically, I (...) will argue that a novel account of social conventions can be employed to reestablish Hart's thesis about the rules of recognition, and that this same account shows why, and to what extent, law is partly an autonomous practice. (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)

Given Bernard Suits’ stature in the philosophy of sport, his take on strategic fouling, surprisingly, hasn’t been given much attention in the literature. Rather than relying on a purely empirical or ‘ethos’ approach to justify the Strategic Foul he provides a mixed justification. Suits’ account combines a priori and a posteriori elements. He introduces a third kind of rule, which appears to be unlike rules of skill or constitutive rules, into his conceptual scheme. Suits claims that it is sometimes tactically (...) correct to break such a rule in order to gain an advantage. I will argue that the a priori element in his justification of strategic fouling is unconvincing because there is nothing special about ‘third type’ rule-violations, which incur a ‘fixed penalty’. Furthermore, the a posteriori element ultimately reduces to a rule of skill, and it is doubtful whether it has sufficient normative force to warrant breaking a rule. But, most importantly, the a posteriori element degrades the power of the a priori element. (shrink)

The paper distinguishes between two conceptions of kinds defined by constitutive rules, the one suggested by Searle, and the one invoked by Williamson to define assertion. Against recent arguments to the contrary by Maitra, Johnson and others, it argues for the superiority of the latter in the first place as an account of games. On this basis, the paper argues that the alleged disanalogies between real games and language games suggested in the literature in fact don’t exist. The paper relies (...) on Rawls’s distinction between types of practices and institutions defined by constitutive rules, and those among them that are actually in force, and hence are truly normative; it defends along Rawlsian lines that a plurality of norms apply to actual instances of rule-constituted practices, and uses this Rawlsian line to block the examples that Maitra, Johnson and others provide to sustain their case. (shrink)

The aim of this paper is to show that the meaning and significance of legal evidence is being constituted throughout the course of a singular instance of legal proceedings. This is to be achieved by describing what legal agents _do_ while appealing to different propositions of fact and inferring from them throughout the course of legal proceedings. The authors claim that the process of applying the law is ultimately rooted in the inferential discursive practices of exchanging reasons on the part (...) of the participants of legal proceedings. Therefore, they set forth a model of legal proceedings that consists of an interplay between three types of reasons, which are exchanged by the participants of legal proceedings: i.e. legal reasons, epistemic reasons and stake reasons. To illustrate this interplay, the authors deploy a metaphor of law as a game, and provide a description of legal proceedings as a particular instance of playing a game of law. The conclusion is that the legal concept of evidence is (at least in part) constituted by the role that evidence plays in affecting which reasons for action the participants to legal proceedings choose to act on. The other final assumption of this paper is metatheoretical: authors want to show that when analyzing what legal evidence is, one should begin from the perspective of a singular instance of legal proceedings, rather than from the perspective of law in general. (shrink)

Our aim is to provide an account of constitutive rules in terms of (1) the acceptance of regulative norms, and (2) a cognitive process we call “symbolization” (in an altogether different sense from what J. R. Searle means by this word). We claim, first, that institutional facts à la Searle boil down to facts concerning the collective acceptance of regulative norms in a given community. This, however, does not exhaust what institutional facts are. There is a residue, symbolization. Symbolization, as (...) we understand it, involves a transfer of cognitive models from one domain to another. We introduce this notion by exploring different sorts of games, taking our cue from games of pretend play. In the context of this exploration, we introduce the idea of the significance—a matter of degree—of symbolization for a given institutional concept. In particular, we claim, symbolization may play, vis‐à‐vis a given institutional concept, a properly constitutive or a merely auxiliary role. We further argue that, in most legal concepts as conceived in our legal culture, symbolization plays a merely auxiliary role. A possible exception is the concept of political representation, at least on some understandings of it. (shrink)

In his work, Jules Coleman has held that the rule of recognition, if conceived of as a shared cooperative activity, should be the gateway through which to incorporate moral constraints on the content of law. This analysis, however, leaves unanswered two important questions. For one thing, we do not know when or even why morality becomes a criterion of legality. And, for another thing, we still do not know what conception of morality it is that we are dealing with. In (...) this article, we will attempt to clarify in greater depth what relations there are between the social practice of law and morality. We will thus see how the cooperative nature of social practices imbues law with a moral force, and how this makes it possible to establish a "weak" connection between law and morality: To see this, we will need to single out some basic features of cooperative social practices, thus setting out a suitable framework for the view just mentioned. (shrink)

In this article I am going to argue that despite the fact that (1) there is nothing specific to the form of constitutive rules and (2) that in some broad sense every rule has a constitutive aspect, there is a substantial difference between what might be called trivially and genuinely constitutive rules, and the difference can be spotted by looking at practices that rules are supposed to constitute, not at these rules.

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)