In his insightful and challenging paper, Jonathan Schaffer argues against a distinction I make in The Ant Trap (Epstein 2015) and related articles. I argue that in addition to the widely discussed “grounding” relation, there is a different kind of metaphysical determination I name “anchoring.” Grounding and anchoring are distinct, and both need to be a part of full explanations of how facts are metaphysically determined. Schaffer argues instead that anchoring is a species of grounding. The crux of his argument (...) comes in the last sections of his paper, in his discussion of “exportation,” the relations strategy, and the definitions strategy. I am inclined to agree that Schaffer’s interesting strategies offer the best choices for the philosopher who wants to insist that anchoring is a species of grounding. But both, I will argue, are fatally flawed. I do not take the separation of anchors from grounds lightly, but find the evidence in its favor overwhelming. And once the distinction is made, I find anchoring to be a powerful practical tool in metaphysics. Philosophy and Phenomenological Research, Volume 99, Issue 3, Page 768-781, November 2019. (shrink)

What is the nature of law and what is the best way to discover it? This book argues that law is best understood in terms of the social functions it performs wherever it is found in human society. In order to support this claim, law is explained as a kind of institution and as a kind of artefact. To say that it is an institution is to say that it is designed for creating and conferring special statuses to people so (...) as to alter their rights and responsibilities toward each other. To say that it is an artefact is to say that it is a tool of human creation that is designed to signal its usability to people who interact with it. This picture of law's nature is marshalled to critique theories of law that see it mainly as a product of reason or morality, understanding those theories via their conceptions of law's function. It is also used to argue against those legal positivists who see law's functions as relatively minor aspects of its nature. -/- This method of conceptualizing law's nature helps us to explain how the law, understood as social facts, can make normative demands upon us. It also recommends a methodology for understanding law that combines elements of conceptual analysis with empirical research for uncovering the purposes to which diverse peoples put their legal activities. (shrink)

We live in a world of crowds and corporations, artworks and artifacts, legislatures and languages, money and markets. These are all social objects — they are made, at least in part, by people and by communities. But what exactly are these things? How are they made, and what is the role of people in making them? In The Ant Trap, Brian Epstein rewrites our understanding of the nature of the social world and the foundations of the social sciences. Epstein explains (...) and challenges the three prevailing traditions about how the social world is made. One tradition takes the social world to be built out of people, much as traffic is built out of cars. A second tradition also takes people to be the building blocks of the social world, but focuses on thoughts and attitudes we have toward one another. And a third tradition takes the social world to be a collective projection onto the physical world. Epstein shows that these share critical flaws. Most fundamentally, all three traditions overestimate the role of people in building the social world: they are overly anthropocentric. Epstein starts from scratch, bringing the resources of contemporary metaphysics to bear. In the place of traditional theories, he introduces a model based on a new distinction between the grounds and the anchors of social facts. Epstein illustrates the model with a study of the nature of law, and shows how to interpret the prevailing traditions about the social world. Then he turns to social groups, and to what it means for a group to take an action or have an intention. Contrary to the overwhelming consensus, these often depend on more than the actions and intentions of group members. (shrink)

In this paper I take it for granted that legal institutions are artifacts. In general, this can very well be considered a trivial thesis in legal philosophy. As trivial as this thesis may be, however, to my knowledge no legal philosopher has attempted an analysis of the peculiar reality of legal phenomena in terms of the reality of artifacts, and this is particularly striking because there has been much discussion about artifacts in general philosophy (specifically analytic metaphysics) over the last (...) twenty years. In particular, the concepts of intention, function, plan of action, and history are in competition to explain the ontology of artifacts, and a similar competition can be found at the core of legal theory. Such a striking parallelism between the domain of artifacts and that of legal institutions is a clue for legal ontology that deserves further attention: I will offer my own interpretation of this parallelism in the first part of this paper (Sections 2 and 3). In providing a theory of legal institutions as artifacts, one could be led to the conclusion that law is essentially an artificial phenomenon, something which does not bear any significant relationship to the natural domain. However, I think that such a conclusion would be mistaken. In fact, this is the second thesis I want to explore in this paper: not only that legal institutions are artifacts, but also that they can be artifacts which in some sense "mirror," or imitate, some descriptions of the natural, pre-social reality we live in. What I would like to show is not that legal institutions are "natural" in the sense that they have some feature which is not human-dependent, as some natural law theorists would say, but rather that their conceptual content can depend on our conceptualization of the natural domain despite being entirely artifactual. This is what I will call the "institutional mimesis" behind several important instances of legal artifacts, and I will deal with it in the second part of this paper (Sections 4 and 5). (shrink)

A number of philosophers have recently become receptive to the idea that, in addition to scientific or causal explanation, there may be a distinctive kind of metaphysical explanation, in which explanans and explanandum are connected, not through some sort of causal mechanism, but through some constitutive form of determination. I myself have long been sympathetic to this idea of constitutive determination or ‘ontological ground’; and it is the aim of the present paper to help put the idea on a firmer (...) footing - to explain how it is to be understood, how it relates to other ideas, and how it might be of use in philosophy. (shrink)

In this collection of previously published essays, Sally Haslanger draws on insights from feminist and critical race theory and on the resources of contemporary analytic philosophy to develop the idea that gender and race are positions ...

Part 1 of this exchange consists in a critique by Smith of Searle’s The Construction of Social Reality focusing on Searle’s use of the formula ‘X counts as Y in context C’. Smith argues that this formula works well for social objects such as dollar bills and presidents where the corresponding X terms (pieces of paper, human beings) are easy to identify. In cases such as debts and prices and money in a bank's computers, however, the formula fails, because these (...) are cases of what he calls ‘free-standing Y terms’, since there is here no X which can count as the corresponding Y. In his response in Part 2, Searle argues that Smith’s critique rests on three misunderstandings: 1. in wrongly presupposing that Searle is trying to analyze the nature of what he calls “social objects”, rather than of social facts; 2. in thinking that the counts as formula is intended as a definition, rather than as a mere mnemonic; and 3. in neglecting the naturalism of Searle’s account. (shrink)

This work presents an account of social power based on recent advances in social ontology. It is argued that a conceptual analysis of social power can be informed by developments in social ontology, but also that this field can be enriched, and in fact requires, an analysis of this central social concept. Social power is dependent on the existence of various kinds of social phenomena, such as institutions and social structures, in order to exist. Consequently, a precise analysis of these (...) social phenomena improves our understanding of social power, and the different forms it takes. The proposed taxonomy of social power is based on this insight since the various types of social power is explained in terms of the different social phenomena on which it depends. These forms of social power share a common feature; they are dependent on collective intentionality to exist, which makes the analysis of this notion an important part of the book. The following definition of social power is proposed: An agent A has social power if and only if A has an ability, which is existentially dependent on collective intentionality, to effect a specific outcome. Due to presupposing a cooperative and consensus-oriented view of social phenomena, other works in this field offer too narrow analyses, if any, of social power. For instance, the type of power - deontic power - previously discussed is necessarily visible or transparent. But there are other forms of power in social reality, such as opaque kinds of social power, telic power, and power as the imposition of internal constraints. In order to account for these forms of social power the investigation is extended to areas which have been neglected so far: second-order social phenomena such as social structures, opaque kinds of social facts, and different types of normativity. A definition of "social structure" is offered, and the tools of social ontology are applied to a new area, meta-ethics, in arguing for the thesis that moral facts are social facts. The book also offers a critical discussion of central theories in this field, such as John Searle's construction of social reality, Raimo Tuomela's collective acceptance account of sociality and Margaret Gilbert's plural subject theory. This critical discussion aims at improving our understanding of the nature of social phenomena. (shrink)

Philosophy and Phenomenological Research, Volume 99, Issue 3, Page 749-767, November 2019.

The renowned philosopher John Searle reveals the fundamental nature of social reality. What kinds of things are money, property, governments, nations, marriages, cocktail parties, and football games? Searle explains the key role played by language in the creation, constitution, and maintenance of social reality. We make statements about social facts that are completely objective, for example: Barack Obama is President of the United States, the piece of paper in my hand is a twenty-dollar bill, I got married in London, etc. (...) And yet these facts only exist because we think they exist. How is it possible that we can have factual objective knowledge of a reality that is created by subjective opinions? This is part of a much larger question: How can we give an account of ourselves, with our peculiar human traits DS mind, reason, freedom, society - in a world that we know independently consists of mindless, meaningless particles? How can we account for our social and mental existence in a realm of brute physical facts? In answering this question, Searle avoids postulating different realms of being, a mental and a physical, or worse yet, a mental, a physical, and a social. There is just one reality: Searle shows how the human reality fits into that one reality. Mind, language, and civilization are natural products of the basic facts of the physical world described by physics, chemistry and biology. Searle explains how language creates and maintains the elaborate structures of human social institutions. These institutions serve to create and distribute power relations that are pervasive and often invisible. These power relations motivate human actions in a way that provides the glue that holds human civilization together. Searle shows how this account illuminates human rationality, free will, political power, and human rights. Our social world is a world created and maintained by language. (shrink)

Social conventions are those arbitrary rules and norms governing the countless behaviors all of us engage in every day without necessarily thinking about them, from shaking hands when greeting someone to driving on the right side of the road. In this book, Andrei Marmor offers a pathbreaking and comprehensive philosophical analysis of conventions and the roles they play in social life and practical reason, and in doing so challenges the dominant view of social conventions first laid out by David Lewis. (...) Marmor begins by giving a general account of the nature of conventions, explaining the differences between coordinative and constitutive conventions and between deep and surface conventions. He then applies this analysis to explain how conventions work in language, morality, and law. Marmor clearly demonstrates that many important semantic and pragmatic aspects of language assumed by many theorists to be conventional are in fact not, and that the role of conventions in the moral domain is surprisingly complex, playing mostly an auxiliary and supportive role. Importantly, he casts new light on the conventional foundations of law, arguing that the distinction between deep and surface conventions can be used to answer the prevalent objections to legal conventionalism. Social Conventions is a much-needed reappraisal of the nature of the rules that regulate virtually every aspect of human conduct. (shrink)

Institutions generate cooperative benefits that explain why they exist and persist. Therefore, their etiological function is to promote cooperation. The function of a particular institution, such as money or traffic regulations, is to solve one or more cooperation problems. We go on to argue that the teleological function of institutions is to secure values by means of norms. Values can also be used to redesign an institution and to promote social change. We argue, however, that an adequate theory of institutions (...) should not be ‘moralized’ in that they should not be defined in terms of the values they are supposed to promote. (shrink)

Law being a derivative feature of reality, it exists in virtue of more fundamental things, upon which it depends. This raises the question of what is the relation of dependence that holds between law and its more basic determinants. The primary aim of this paper is to argue that grounding is that relation. We first make a positive case for this claim, and then we defend it from the potential objection that the relevant relation is rather rational determination (Greenberg 2004, (...) 2006). Against this challenge, we argue that the apparent objection is really no objection, for on its best understanding, rational determination turns out to actually be grounding. Finally, we clarify the framework for theories on law-determination that results from embracing our view; by way of illustration, we offer a ground-theoretic interpretation of Hartian positivism, and show how it can defuse an influential challenge to simple positivist accounts of law. (shrink)

Reprint of the first American edition. One of the most interesting jurists of the post-World War II era, Ross [1899-1979] was a legal and moral philosopher, scholar of international law and the leading representative of Scandinavian Legal Realism. This book and On Law and Justice (1958) are his principal works. In Directives and Norms Ross asks whether imperatives (or, to use his term, 'directives') are subject to logic in the same way as indicatives. He shows the difference between indicative and (...) directive discourse and explains the concepts 'directive' and 'norm' as they function in the social sciences, especially in the study of law. A contemporary essay in the Modern Law Review (32:544), though critical of this work, was still impressed by its "clear and convincing account" of these processes. (shrink)

Context has always been central to Searle’s account of constitutive rules, as can be appreciated from his classic formulation, ‘X counts as Y in context C.’ But while the nature of X and Y in Searle have been widely discussed, the role of the context in which Y is constituted on the basis of X has not. So, in this paper, I will discuss how context shapes the process of constituting and creating meaning through rules and how, in doing so, (...) it affects the regulative action of constitutive rules. I extract from this argument the general thesis that the two main questions concerning constitutive rules-namely, ‘How can they be constitutive of meaning?’ and ‘How can they be rules even so, despite their constitutive role?’-can be solved by looking at the wider context, or ‘practice,’ within which these rules are framed, and that such an approach can give us further insight into the functioning of institutions. (shrink)

The goal in this short paper is to argue that so-called intermediary concepts play an essential role in organizing and generating legal knowledge. The point of departure is a reconstruction and a critique of Alf Ross’s analysis of such concepts. His goal was to argue that there exist concepts in the law which have no semantic reference, yet it is reasonable to use them as they perform some useful function regarding the presentation of legal rules. The author believes that Ross (...) is wrong on both counts: his argument to the effect that intermediary concepts have no reference is flawed, and his characterization of the functions such concepts play in the law is too limiting. (shrink)

Norms explained as grounds of practical judgment, using example of queue. Some norms informal, inexact, depend on common understanding ; some articulated in context of two-tier normative order: `rules', explicit or implicit. Logical structure of rules displayed. Informal and formal normative order explained, `institutional facts ' depend on acts and events interpreted in the light of normative order. Practical force of rules differentiated; either `absolute application' or `strict application' or `discretionary application', depending on second-tier empowerment. Discretion can be guided by (...) values, principles standards. Pervasiveness of institutions and institutional facts, especially but not only in relation to institutions of state-law, including constitution and state-institutions. Searle's and Ruiter's theories of institution, institutional fact, considered: `constitutive rule' rejected in favour of `underlying principle', structure of `institutive, consequential and terminative' rules explained and defended. Ruiter's conception of `institutional `régime' considered and adopted, validity of norms and normative `régimes' considered and differentiated from truth of statements of institutional fact. (shrink)

The purpose of this book -- Intentionality -- Collective intentionality and the assignment of function -- Language as biological and social -- The general theory of institutions and institutional facts: -- Language and social reality -- Free will, rationality, and institutional facts -- Power : deontic, background, political, and other -- Human rights -- Concluding remarks : the ontological foundations of the social sciences.

Ross, Alf Loar, Brian, Editor.Directives and Norms. New York: Humanities Press, [1967]. ix, 188 pp. Reprint available April 2009 by The Lawbook Exchange, Ltd. ISBN-13: 978-1-58477-961-2. ISBN-10: 1-58477-961-6. Cloth with dust jacket. $65.00 * Reprint of the first American edition. One of the most interesting jurists of the post-World War II era, Ross [1899-1979] was a legal and moral philosopher, scholar of international law and the leading representative of Scandinavian Legal Realism. This book and On Law and Justice (1958) are (...) his principal works. In Directives and Norms Ross asks whether imperatives (or, to use his term, 'directives') are subject to logic in the same way as indicatives. He shows the difference between indicative and directive discourse and explains the concepts 'directive' and 'norm' as they function in the social sciences, especially in the study of law. A contemporary essay in the Modern Law Review (32:544), though critical of this work, was still impressed by its "clear and convincing account" of these processes. (shrink)

The idea that particular legal institutions are artifacts is not new. However, the idea that the “law” or “legal system” is itself an artifact has seldom been directly put forward, due perhaps to the ambiguities surrounding philosophical inquiries into law. Nevertheless, such an idea has recently been invoked more often, though not always developed in detail in terms of what the characterization of the “law” or “legal system” as an artifact entails ontologically, and what consequences, if any, this has for (...) philosophical accounts of law. As a result, the primary aim of this paper is to attempt an inquiry into what the claim that “law” by its nature or character is an artifact entails, and what an artifact theory of law might look like. (shrink)

The article is concerned with the question of how legal institutions are structured with the use of constitutive, institutive, consequential, and terminative rules. To that end, the regulation of international treaties as laid down in the Vienna Convention on the Law of Treaties of 1969 is analysed. This leads to the discovery of two additional categories of rules: content rules and invalidating rules. Finally, the special status of unique legal institutions is investigated. Unique legal institutions – for example, heads of (...) state, parliaments, and supreme courts – enjoy validity in a legal system to the exclusion of the validity of any other legal institution of the same category in that system. (shrink)