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)

Timothy Williamson famously argued that assertion is constituted either by the knowledge rule or some similar epistemic rule. If true, the proposal has important implications for criticism of assertions. If assertions are analogical to other rule-constituted kinds like games, we can criticize assertions either on external or internal grounds, depending on whether the criticism draws from the necessary norms of assertion or some contingent ones. More recently, authors like Goldberg and MacFarlane have argued against other theories of assertion on the (...) grounds that they cannot explain the possibility of internal criticism for assertions. This paper raises methodological problems with these arguments. The main idea is to show that alternative, non-normative accounts of assertion can also explain the apparent differences in grounds of criticism without assuming that assertion is necessarily governed by some epistemic norm. (shrink)

Many philosophers, following Williamson (The Philosophical Review 105(4): 489–523, 1996), Williamson (Knowledge and its Limits, Oxford, Oxford Univer- sity Press, 2000), subscribe to the constitutive rule account of assertion (CRAA). They hold that the activity of asserting is constituted by a single constitutive rule of assertion. However, in recent work, Maitra (in: Brown & Cappelen (ed). Assertion: new philosophical essays, Oxford, Oxford University Press, 2011), Johnson (Acta Analytica 33(1): 51–67, 2018), and Kelp and Simion (Synthese 197(1): 125–137, 2020a), (...) Kelp and Simion (in: Goldberg (ed) The Oxford Handbook of Assertion, Oxford, Oxford University Press, 2020b) aim to show that, for all the most popular versions of the constitutive rule of assertion proposed in the literature, asserting is not an activity constituted by a single constitutive rule and that therefore CRAA is very likely false. To reach this conclusion, they all present a version of what can be dubbed the engagement condition objection. That is, they each propose a necessary condition on engaging in rule-constituted activities. Then they argue that, for all the most popular versions of the constitutive rule of assertion proposed in the literature, one can make assertions without satisfying this condition. In response, I present a counterexample that shows that the proposed engagement conditions lead to coun- terintuitive results, and I propose an alternative that better captures our intuitions. Then I argue that this alternative engagement condition is compatible with all the most popular versions of the constitutive rule of assertion. (shrink)

An experimental paradigm that purports to test young children’s understanding of social norms is examined. The paradigm models norms on Searle’s notion of a constitutive rule. The experiments and the reasons provided for their design are discussed. It is argued that the experiments do not provide direct evidence about the development of social norms and that the concepts of a social norm and constitutive rule are distinct. The experimental data are re-interpreted, and suggestions for how to deal with (...) the present criticism are presented that do not require abandoning the paradigm as such. Then the conception of normativity that underlies the experimental paradigm is rejected and an alternative view is put forward. It is argued that normativity emerges from interaction and engagement, and that learning to comply with social norms involves understanding the distinction between their content, enforcement, and acceptance. As opposed to rule-based accounts that picture the development of an understanding of social norms as one-directional and based in enforcement, the present view emphasizes that normativity is situated, reciprocal, and interactive. (shrink)

The creation of new institutions and the initiation of new forms of behaviour cannot be explained only on the basis of constitutive rules – they also require a broader commitment of individuals who participate in social practices and, thus, to become members of a community. In this paper, I argue that the received conception of constitutive rules shows a problematic intellectualistic bias that becomes particularly manifest in three assumptions: (i) constitutive rules have a logical (...) form, (ii) constitutive rules have no normative force, and (iii) rules are essentially tied to a sanctioning authority. I discuss these three claims in light of real-life examples. The goal of this discussion is to show that the normative force of constitutive rules is based on the shared commitment of participants who engage in the relevant practices. The inner cohesion and the persistence in time of these practices is possible only because participants continuously calibrate their own forms of behaviour to that of the other members of the community, which underscores the social dimension of constitution. (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)

This paper attempts to answer whether the property of “efficacy” can be attributed to constitutive rules. In particular, according to Di Lucia, I will point out some problems that the “semantic conception of efficacy” has concerning constitutive and regulative rules. Then, the main goal of the paper will be to reflect on the possibility of the efficacy of constitutive rules by means of a complex case that the semantic conception seems to disregard: The case (...) of the cheater. Does the action of the cheater show the inefficacy of constitutive rules? Does she play the game while breaking the rule? Can the semantic conception of efficacy explain this situation, or do we need a more flexible concept of efficacy that takes nomotropism into account? These are some of the questions I will try to answer. (shrink)

Amongst the entities making up social reality, are there necessary relations whose necessity is not a mere reflection of the logical connections between corresponding concepts? We distinguish three main groups of answers to this question, associated with Hume and Adolf Reinach at opposite extremes, and with Searle who occupies a position somewhere in the middle. We first set forth Reinach’s views on what he calls ‘material necessities’ in the realm of social entities. We then attempt to show that Searle has (...) not identified a sustainable position somewhere between the Humean and the Reinachian extremes. This is because Searle’s position is threatened by circularity, and to steer clear of that danger it must incorporate at least some elements of Reinach’s essentialism. (shrink)

In this paper, I present a game-theoretic solution to the rule-following paradox in terms of what I will call basic constitutive practices. The structure of such a practice P constitutes what it is to take part in P by defining the correctness conditions of our most basic concepts as those actions that lie on the correlated equilibrium of P itself. Accordingly, an agent S meant addition by his use of the term ‘+’ because S is taking part in a (...) basic constitutive practice of adding where quus-like answers are ruled out by not lying on the equilibrium. The resulting picture of language will preserve the objectivity and correctness conditions of meaning, all the while providing room for the community as a whole to make a mistake. I also argue that by accepting the account presented, we have a strong reason to reject the idea that language is rule-governed. (shrink)

Proponents of the rule of law argue about whether that ideal should be conceived formalistically or in terms of substantive values. Formalistically, the rule of law is associated with principles like generality, clarity, prospectivity, consistency, etc. Substantively, it is associated with market values, with constitutional rights, and with freedom and human dignity. In this paper, I argue for a third layer of complexity: the procedural aspect of the rule of law; the aspects of rule-of-law requirements that have to do with (...) "natural Justice" or "procedural due process." These I believe have been neglected in the jurisprudential literature devoted specifically to the idea of the rule of law and they deserve much greater emphasis. Moreover procedural values go beyond elementary principles like the guarantee of an unbiased tribunal or the opportunity to present and confront evidence. They include the right to argue in a court about what the law is and what its bearing should be on one's situation. The provision that law makes for argument is necessarily unsettling, and so this emphasis on the procedural aspect highlights the point predictability should not be regarded as the be-all and end-all of the rule of law. (shrink)

Normativists about belief hold that belief formation is essentially rule- or norm-guided. On this view, certain norms are constitutive of or essential to belief in such a way that no mental state not guided by those norms counts as a belief, properly construed. In recent influential work, Kathrin Glüer and Åsa Wikforss develop novel arguments against normativism. According to their regress of motivations argument, not all belief formation can be rule- or norm-guided, on pain of a vicious infinite regress. (...) I argue that the regress of motivations argument is unsuccessful: an appeal to the notion of blind rule-following, drawn from a plausible interpretation of Ludwig Wittgenstein’s remarks on rule-following, stops the regress of motivations in its tracks. (shrink)

I address the question of whether naturalism can provide adequate means for the scientific study of rules and rule-following behavior. As the term "naturalism" is used in many different ways in the contemporary debate, I will first spell out which version of naturalism I am targeting. Then I will recall a classical argument against naturalism in a version presented by Husserl. In the main part of the paper I will sketch a conception of rule-following behavior that is influenced by (...) Sellars and Haugeland. I will argue that rule-following is an essential part of human nature and insist in the social dimension of rules. Moreover, I will focus on the often overlooked fact that genuine rule-following behavior requires resilience and presupposes an inclination to calibrate one's own behavior to that of the other members of the community. Rule-following, I will argue, is possible only for social creatures who follow shared rules, which in turn presupposes a shared (first-person plural) perspective. This implies, however, that our scientific understanding of human nature has to remain incomplete as long as it does not take this perspective, which prima facie seems alien to it, into account. (shrink)

In this paper I consider the concept of an illocutionary rule - i.e., the rule of the form "X counts as 7 in context C" - and examine the role it plays in explaining the nature of verbal communication and the conventionality of natural languages. My aim is to find a middle ground between John R. Searle's view, according to which every conventional speech act has to be explained in terms of illocutionary rules that underlie its performance, and the (...) view held by Ruth G Millikan, who seems to suggest that the formula "X counts as Y in context C" has no application in our theorizing about human linguistic practice. I claim, namely, that the concept of an illocutionary rule is theoretically useful, though not explanatorily basic. I argue that using the formula "X counts as Y in context C" we can classify illocutionary acts by what Millikan calls their conventional outcomes, and thereby make them susceptible to naturalistic explanation. (shrink)

ABSTRACT: A traditional objection to inferentialism states that not all inferences can be meaning-constitutive and therefore inferentialism has to comprise an analytic-synthetic distinction. As a response, Peregrin argues that meaning is a matter of inferential rules and only the subset of all the valid inferences for which there is a widely shared corrective behaviour corresponds to rules and so determines meaning. Unfortunately, Peregrin does not discuss what counts as “widely shared”. In the paper, I argue for an (...) empirical plausibility of Peregrin’s proposal. The aim of the paper is to show that we can find examples of meaning-constitutive linguistic action, which sustain Peregrin’s response. The idea is supported by examples of meaning modulation. If Peregrin is right, then we should be able to find specific meaning modulations in which a new meaning is publicly available and modulated in such a way that it has a potential to be widely shared. I believe that binding modulations – a specific type of meaning modulations – satisfy this condition. (shrink)

In this article, it is argued that existing democracies might establish popular rule even if Joseph Schumpeter’s notoriously unflattering picture of ordinary citizens is accurate. Some degree of popular rule is in principle compatible with apathetic, ignorant and suggestible citizens, contrary to what Schumpeter and others have maintained. The people may have control over policy, and their control may constitute popular rule, even if citizens lack definite policy opinions and even if their opinions result in part from elites’ efforts to (...) manipulate these opinions. Thus, even a purely descriptive, ‘realist’ account of democracy of the kind that Schumpeter professed to offer may need to concede that there is no democracy without some degree of popular rule. (shrink)

Rules are meant to apply equally to all within their jurisdiction. However, some rules are frequently broken without consequence for most. These rules are only occasionally enforced, often at the discretion of a third-party observer. We propose that these rules—whose violations are frequent, and enforcement is rare—constitute a unique subclass of explicitly codified rules, which we call ‘phantom rules’ (e.g., proscribing jaywalking). Their apparent punishability is ambiguous and particularly susceptible to third-party motives. Across six (...) experiments, (N = 1440) we validated the existence of phantom rules and found evidence for their motivated enforcement. First, people played a modified Dictator Game with a novel frequently broken and rarely enforced rule (i.e., a phantom rule). People enforced this rule more often when the “dictator” was selfish (vs. fair) even though the rule only proscribed fractional offers (not selfishness). Then we turned to third person judgments of the U.S. legal system. We found these violations are recognizable to participants as both illegal and commonplace (Experiment 2), differentiable from violations of prototypical laws (Experiments 3) and enforced in a motivated way (Experiments 4a and 4b). Phantom rule violations (but not prototypical legal violations) are seen as more justifiably punished when the rule violator has also violated a social norm (vs. rule violation alone)—unless the motivation to punish has been satiated (Experiment 5). Phantom rules are frequently broken, codified rules. Consequently, their apparent punishability is ambiguous, and their enforcement is particularly susceptible to third party motives. (shrink)

Are norms of inquiry in tension with epistemic norms? I provide a (largely) negative answer, turning to a picture of epistemic practices as rule-governed games. The idea is that, while epistemic norms are correctness standards for the attitudes involved in epistemic games, norms of inquiry derive from the aims of those games. Attitudes that, despite being epistemically correct, are inadvisable regarding the goals of some inquiry are just like bad (but legal) moves in basketball or chess. I further consider cases (...) in which the aims of inquiry recommend breaking epistemic norms. I compare them to strategic infractions, which are common in many coherent games. Finally, I explore the connections between rules and aims in games and in inquiry. I show that in both cases respecting the rules is constitutively required for satisfying the aims of the practice. (shrink)

Scholars interested in the characterology presupposed by constitutional government have occasionally turned to Plato’s Laws, one of the earliest and most penetrating treatments of the subject. Even so, interpreters have neglected a vital tension that the Laws presents as coeval with lawfulness itself. Through a close reading of the dialogue’s opening passages, I argue that the rule of law for Plato is implicated in a certain paradox: it both prohibits and requires the imitation of god. Law cannot safely originate with (...) human beings; yet human beings must involve themselves nonetheless in laying law down. Trustworthy lawgivers must revere the gods while at the same time emulating them, must somehow make law themselves while regarding that very task as beyond their ken. Although the political psychology of lawfulness would therefore seem incoherent, I conclude by surveying reasons for thinking this inference unwarranted. (shrink)

The article contains a critical analysis of the skeptical solution to the rule- following problem. The skeptical solution denies the existence of “superlative” R-facts that would make statements of the form “P means R by ‘+’ ” true. The role of the sources for the meaning of ‘+’ here is played by the patterns of solidarity behavior of members of some community to which P belongs. The correct use of ‘+’ would be one that is approved by the competent majority (...) of this community, and there can be no other sense in which it would be correct or wrong. Boyd’s hypothesis denies the communal character of the ‘+’ meaning. While there are no “superlative” R-facts, there should be C-facts not about the R as the standard that P or its community follows in their practice of using ‘+’, but about whether they do it correctly. The proof of the Boyd hypothesis is based on the example of an imaginary Ω-community, whose agents use a finite set of simple symbols for the needs of their arithmetic: ‘A’, ‘B’, ‘C’, ‘D’, ‘E’, ‘F’, ‘G’, ‘H’, ‘J’. Each symbol denotes a subset of identical, from the Ω-community point of view, numerical values. The symbol ‘A’ is used, for ex- ample, for a subset of the natural numbers 1, 10, 19, 28, 37, 46, etc.; ‘B’ for 2, 11, 20, 29, 38, 47, etc.; ‘C’ for 3, 12, 21, 30, 39, 48, etc. The Ω-community’s arithmetic uses the only local function ⊕ whose range of values forms a finite set of mathematical propositions {α} that are true. The Ω-community’s arithmetic, like our own, is open to many skeptical challenges. Is there a fact that determines the meaning of ‘⊕’? What do agents do when they calculate with ‘⊕’ (say, solve examples ‘A⊕B = ?’, ‘C⊕E=?’, etc.)? Do they Add, Badd or Dadd? To answer them would require a “superlative” R-fact. For the calculation practice with ‘⊕’, it could be a certain R-fact that determines the only possible order for the sequence of numerals ‘A’, ‘B’, ‘C’, ‘D’, ‘E’, ‘F’, ‘G’, ‘H’, ‘J’ such that {α} is true. An analysis of the calculation practice using the local arithmetic function ⊕ shows that for it there are no such R-facts that would determine the only correct standard R – even if the agents in the Ω-community were trained in such calculations on a full set of cases for the application of that function. However, for such practice there are C-facts (independent in their existence from R-facts) that make it possible to distinguish between what seems to be right and what is right. The solitary agent P and the Ω-community are in the same position regarding the knowledge of C-facts. The Ω-community’s point of view has no advantage in matters of C-facts knowledge over the solitary agent P’s point of view. The Ω-community arithmetic shows that if a solitary agent P had the suitable knowledge of C-facts about the practice of calculations with ‘⊕’, it would allow him/her to disagree with the not correct answers of other members of the community even when they would constitute an absolute majority. (shrink)

After the emergence of a popular resistance movement to direct rule by an absolutist monarchy, and several years of civil war, King Gyanendra of Nepal yielded power to an elected Congress in 2006. Within one year, Nepali citizens saw the signing of a Comprehensive Peace Accord, the establishment of a Constituent Assembly, the declaration of the Nepali state, and the declaration of the Nepali Republic a year after that. An Interim Constitution was adopted by 2007, which endowed the Constituent Assembly (...) with the authority to draft Nepal’s permanent Constitution, and established the limitations under which the Assembly must operate — all apparently legitimate steps in establishing a Constitutional order. What initially appeared to adhere to an established model of post-sovereign constitution-making failed in its first attempt. Indeed, the drafting and ratification of a permanent constitution is no easy task. Why did the first Constituent Assembly fail? Where did the constitution-making process divert from the post-sovereign model, and what caused it? I examine the process from the establishment of Nepal’s first Constituent Assembly to the short-lived deliberations of the Assembly, followed by the dissolution of the Assembly for failing to achieve its mandate. I also trace Nepal’s constitution-making process along the post-sovereign model, and assess whether they adhered to or diverted from the model. It is understood that no political models are fixed in the sense that adherence or divergence is necessarily incompatible with success or failure. However, I use Andrew Arato’s post-sovereign model as a guide for identifying the stages in the constitution-making process, and for a background to the discussion on where the first Assembly failed. (shrink)

What is the American rule of law? Is it a paradigm case of the strong constitutionalism concept of the rule of law or has it fallen short of its rule of law ambitions? -/- This open access book traces the promise and paradox of the American rule of law in three interwoven ways. -/- It focuses on explicating the ideals of the American rule of law by asking: how do we interpret its history and the goals of its constitutional framers (...) to see the rule of law ambitions its foundational institutions express? -/- It considers those constitutional institutions as inextricable from the problem of race in the United States and the tensions between the rule of law as a protector of property rights and the rule of law as a restrictor on arbitrary power and a guarantor of legal equality. In that context, it explores the distinctive role of Black liberation movements in developing the American rule of law. -/- Finally, it considers the extent to which the American rule of law is compromised at its frontiers, and the extent that those compromises undermine legal protections Americans enjoy in the interior. It asks how America reflects the legal contradictions of capitalism and empire outside its borders, and the impact of those contradictions on its external goals. (shrink)

R. M. Hare has argued for and defended a ‘two-level’, view of moral agency. He argues that moral agents ought to rely on the rules of ‘intuitive moral thinking’ for their ‘everyday’ moral judgments. When these rules conflict or when we do not have a rule at hand, we ought to ascend to the act-utilitarian,‘critical’ level of moral thinking. I argue that since the rules at the intuitive level of moral thinking necessarily conflict much more often than (...) Hare supposes, and since we often do not have ready-made rules for our moral judgments, we must necessarily use critical moral thinking very frequently. However, act-utilitarian judgements at this level will sharply conflict with our strongly held ‘intuitive’ moral convictions. I show that Hare's attempt to balance these two aspects of moral judgment requires us to simultaneously adopt two conflicting sets of moral standards, and thus an attempt to inculcate such standards constitutes a ‘schizophrenic’ moral education. Finally, I briefly outline an alternative conception of moral education, based on Aristotelian phronesis. (shrink)

n this paper, I analyse Rahel Jaeggi’s socio-ontological account of forms of life. I show that her framework is a two-sided one, since it involves an understanding of forms of life both as inert bundles of practices and as having a normative structure. Here I argue that this approach is based on an a priori argument which assumes normativity as the condition of intelligibility of social criticism. I show that the intimate tension between these two sides is reflected in the (...) socio-ontological model of the constitution of social phenomena, which on the one side is understood in terms of habituation and materialization, and on the other side in terms of constitution through norms. The second side in the end prevails and leads to some sort of normative essentialism which involves a prescriptive meta-theoretical understanding of normativity combined with a socio-ontological model of constitutive rules. I then analyse two arguments that Jaeggi offers in support of her assumption that normative constitution is the deep structure of social practices. I name these the functional- teleological argument, and the crisis developmental argument, and argue that neither succeeds in proving that practices are not normatively underdetermined. (shrink)

In this essay, I seek to demonstrate the interplay of philosophical voices – particularly, that of a platonist voice and a community-agreement-view voice – that drives Wittgenstein’s rule-following dialectic forward; and I argue that each voice succumbs to a particular form of dialectical oscillation that renders its response to the problem of rule-following philosophically inadequate. Finally, I suggest that, by seeing and taking stock of the dilemma in which these responses to the skeptical problem are caught, we can come to (...) appreciate Wittgenstein’s own view of what might constitute a proper a response to the so-called problem of rule-following. This view can be preliminarily characterized by saying that Wittgenstein’s aim is to dissolve the temptation to philosophically rebut the skeptical challenge posed by the rule-following dialectic, an aim he achieves by revealing the semantic emptiness of the apparent sentences that raise the skeptical problem. (shrink)

The rise of populism and its consequences – such as democratic backsliding, the erosion of constitutional principles, and the weakening of the rule of law – are among the most pressing issues facing comparative constitutional scholars today. To address these emerging challenges, the Unconstitutional Constitutional Amendment Doctrine (UCAD) has emerged as the most promising remedy for the “third counterwave of democracy”. However, a fundamental problem with UCAD is how to apply it effectively without undermining constitutional democracy, as it is often (...) criticised and deemed illegitimate from the perspective of democratic principles. (shrink)

Abstract This paper offers an appraisal of Phillip Pettit's approach to the problem how a merely finite set of examples can serve to represent a determinate rule, given that indefinitely many rules can be extrapolated from any such set. I argue that Pettit's so-called ethnocentric theory of rule-following fails to deliver the solution to this problem he sets out to provide. More constructively, I consider what further provisions are needed in order to advance Pettit's general approach to the problem. (...) I conclude that what is needed is an account that, whilst it affirms the view that agents' responses are constitutively involved in the exemplification of rules, does not allow such responses the pride of place they have in Pettit's theory. (shrink)

The purpose of this paper is to describe how judges engage in constitutional design, irrespective of legal tradition. I examine in great detail the role of the judge: as a conflict solver, as a member of an institution, as part of the political system and as a human being, for those are factors that intervene in the activities he makes. I later analyze the dynamics that a Constitution can have: the change in their structure conceptualized as interpretation, mutation and resistance (...) and their relation. Interpretation is the determination of the scope of a norm, mutation is the change of meaning without amendment and resistance is a concept that bridges the first two, which is the capacity of the constitutional rule to adapt to the political game and to assume mutations. Finally, these concepts are intertwined in order to show how judges by means of their function, (re)design the Constitution by means of adjudication and policymaking (rule issuance by the stating of precedent). (shrink)

The legal progression in China is portrayed negatively by western scholars who often argue that the state institutions in China are subordinate to the control of Chinese Communist Party’s leadership which makes these institutions politically insignificant. We consider that the legal progression in China has an instrumental role in achieving “Harmonious Socialist Society.” The purpose of this thesis is to provide an analytical literature review of scholastic work to explain the legality of rule of law in China and to elaborate (...) the outcomes of China’s recent legal developments. This paper has two main subjects. First, it examines the nature of law and rule of law in China through the prism of different legal theories. Secondly, by arguing from different political theories, it explains the necessity of customized legal system in China for establishing a Harmonious Socialist Society. By giving different examples from contemporary China, this thesis argues that the legality of the rule of law in China ought to be understood in the context of China’s economic and social progression rather than the western legal scholarship. China’s economic progress demands a customized legal system. In our thesis, we claim that the regular upgradation of laws and introduction of constitutional amendments in China, should be recognized as important achievement which is required for the institutional innovation. Legal progression in China during last decade perfectly fit into the framework of “Socialism with Chinese Characteristics” and is very crucial for building a harmonious socialist society. It is vivid from China’s economic growth and developed international relations. Finally, this paper suggests that the Chinese legal progression can be taken as successful example of legal experimentalism. (shrink)

Aboriginal claims for self-government in the Americas and Australasia are distinctive for being less about secession—at least so far—than about demanding an innovative rethinking of the regulative norms and institutions within and between already established nation-states. Recent cases in Australia (and Canada) provide an opportunity to consider the nature of such claims, and some of the theoretical implications for regulative conceptions of sovereignty and the rule of law. A general question informing the entire discussion here is: how do particular conceptions (...) of the rule of law affect Aboriginal claims? Can a distinctive body of Aboriginal law survive in a liberal constitutional state already constituted in part by regulative ideals of the rule of law? (shrink)

En «What Makes a Transnational Rule of Law? Understanding the Logos and Values of Human Action in Transnational Law», Verónica Rodríguez-Blanco explora la posibilidad –y oportunidad– de la existencia de un Rule of Law (en adelante, ROL) a nivel transnacional. El objetivo de este trabajo es discutir brevemente algunos puntos relativos a diferentes facetas de la propuesta de Rodríguez-Blanco: la pregunta correcta acerca del ROL y su visión particular acerca de la acción humana (sección 2); el tipo de explicación acerca (...) de las reglas, estándares, reglamentos y principios (sección 3); las definiciones de ROL, coerción, y libertad (sección 4); las partes de la relación relevante y la noción de derecho transnacional (sección 5), y la estructura de las relaciones relevantes en contextos nacionales y transnacionales (sección 6). Intentaré, por una parte, mostrar cómo estos puntos pueden presentarse como relativamente problemáticos y por tanto debilitar la integridad de la propuesta de Rodriguez-Blanco; y, por otra parte, ofrecer algunas alternativas acerca de cómo estos problemas podrían ser resueltos para fortalecerla. A través de esos comentarios intentaré también mostrar cuáles serían, en mi opinión, los puntos importantes a considerar para cualquier discurso o propuesta sólida relacionada con éstos. Finalmente, concluiré con algunos comentarios finales (sección 7). (shrink)

In “What Makes a Transnational Rule of Law? Understanding the Logos and Values of Human Action in Transnational Law”, Veronica Rodriguez-Blanco explores the possibility—and opportunity—of the existence of a Rule of Law (from now on, RoL) on a transnational level. The aim of this paper is to briefly discuss some points related to various facets of Rodriguez-Blanco’s proposal: the correct question about the RoL and her particular view of human action (section 2); the type of explanation about rules, standards, (...) regulations and principles (section 3); the definitions of RoL, coercion, and freedom (section 4); the parties of the relevant relationship and the notion of transnational law (section 5); and the structure of relevant relationships in national and transnational contexts (section 6). I will try, on the one hand, to show how these points could appear quite problematic and thus seem to undermine the integrity of Rodriguez-Blanco’s proposal, and on the other hand, to offer some suggestions as to how these problems could be solved to strengthen her proposal. With these comments, I will also try to indicate what I think are the most important points that should be considered in any sound discourse or proposal on these subjects. I will then conclude with some final remarks (section 7). (shrink)

In a number of works, James M. Buchanan set out a proposal for a ‘demogrant’— a form of universal basic income that applied the principles of generality and non discrimination to the tax and the transfer sides of the scheme and was to be implemented as a constitutional rule outside the realm of day-to-day politics. The demogrant has received surprisingly little scholarly attention, but this article locates it in Buchanan’s broader constitutional political economy project and shows it was a logical (...) application of his theoretical framework to the problem of inefficient and unfair welfare systems when reform to the basic institutions of majoritarian democracy was not forthcoming. The demogrant aims to end the problems of majority cycling and rent seeking that plague contemporary welfare states and therefore offers a model of welfare without rent seeking—a constitutional welfare state. We compare Buchanan’s demogrant model to other universal basic income and negative income tax models and consider the most important criticisms. We conclude that rescuing the demogrant model from relative obscurity would be a fruitful future task of applied constitutional political economy and public choice. (shrink)

It is often argued that inferential role semantics (IRS) entails semantic holism as long as theorists fail to answer the question about which inferences, among the many, are meaning-constitutive. Since analyticity, as truth in virtue of meaning, is a widely dismissed notion in indicating which inferences determine meaning, it seems that holism follows. Semantic holism is often understood as facing problems with the stability of content and many usual explanations of communication. Thus, we should choose between giving up IRS, (...) to avoid these holistic entailments, and defending holism against this charge, to rescue IRS. I try to pursue the second goal by analyzing certain patterns of counterfactual reasoning. Wilfrid Sellars and Robert Brandom claim that, to defend IRS, content-constitutive inferences are those counterfactually robust. While it is difficult to assess the goodness of such a view, it nonetheless entails that counterfactually non-robust inferences (which I call “modally ruled out inferences”) are not content-constitutive. If this is true, and if we take certain remarks about the grasp of concepts on board, there is a way to restrict the scope of the holism entailed by IRS to the extent of reshaping problems with the stability of content. (shrink)

John Broome’s Rationality Through Reasoning is a trail-blazing study of the nature of rationality, the nature of reasoning and the connection between the two. But it may be somewhat misleading in two respects. First, his theory of reasoning is consistent with the meta-propositional view that he rejects; it develops a broadly similar theory but in much greater detail. And while his discussion of rule-following helps to explain the role of rules in reasoning, it does not constitute a response to (...) the classic problem associated with Wittgenstein and Kripke. (shrink)

This paper examines theories of first person authority proposed by Dorit Bar-On (2004), Crispin Wright (1989a) and Sydney Shoemaker (1988). What all three accounts have in common is that they attempt to explain first person authority by reference to the way our language works. Bar-On claims that in our language self-ascriptions of mental states are regarded as expressive of those states; Wright says that in our language such self-ascriptions are treated as true by default; and Shoemaker suggests that they might (...) arise from our capacity to avoid Moore-paradoxical utterances. I argue that Bar-On’s expressivism and Wright’s constitutive theory suffer from a similar problem: They fail to explain how it is possible for us to instantiate the language structures that supposedly bring about first person authority. Shoemaker’s account does not suffer from this problem. But it is unclear whether the capacity to avoid Moore-paradoxical utterances really yields self-knowledge. Also, it might be that self-knowledge explains why we have this capacity rather than vice versa. (shrink)

For a long time many philosophers felt the incoherence objection was a decisive objection to rule-consequentialism, but that position has recently become less secure, because Brad Hooker has offered a clever new way for rule-consequentialists to avoid the incoherence objection. Hooker’s response defeats traditional forms of the incoherence objection, but this paper argues that another version of the problem remains. Several possible solutions fail. One other does not, but it introduces other problems into the theory. I conclude that the new (...) incoherence objection still poses a major challenge to rule-consequentialism, though not for the reasons usually assumed. It does not constitute a fatal objection to rule-consequentialism but instead highlights a theoretical drawback in the theory which must be taken into account during a more holistic evaluation of rule-consequentialism and its rivals. (shrink)

The paper is focused on the criticisms that theorists of political constitutionalism raise against legal constitutionalism, especially with regard to the idea of representation and political sovereignty. At the same time, the intention is to reconstruct the debate between legal and political constitutionalism in contemporary liberalism, starting from the so-called counter-majoritarian difficulty. This debate concerns two different approaches: the political one rejects the idea of judicial review by the Supreme Court because it may establish a possible rule of the judges (...) (Michelman; Dworkin). It defends the role of Parliament in constitutional matters, in contrast with the role of the Supreme Court, inasmuch as – according to them – it is not open to political participation. Parliament is considered the only place in which we can exercise our constitutional power and in which our rights could be adequately protected (Bellamy; Waldron; Tushnet; Goldoni). On the other hand, legal constitutionalism upholds the idea of judicial review, defending the role of the Supreme Court as “exemplar of public reason” (Rawls 1993). This article tries to answer to three fundamental questions about constitutional democracy under the banner of political liberalism: 1. What do we mean by counter-majoritarian difficulty? 2. What is the answer that legal and political model of constitutionalism give to this question? 3. What is the role of constitutional courts in democratic regimes and what is their authority within the State? (shrink)

Contrary to the popular assumption that linguistically mediated social practices constitute the normativity of action (Kiverstein and Rietveld, 2015; Rietveld, 2008a,b; Rietveld and Kiverstein, 2014), I argue that it is affective care for oneself and others that primarily constitutes this kind of normativity. I argue for my claim in two steps. First, using the method of cases I demonstrate that care accounts for the normativity of action, whereas social practices do not. Second, I show that a social practice account of (...) the normativity of action has unwillingly authoritarian consequences in the sense that humans act only normatively if they follow social rules. I suggest that these authoritarian consequences are the result of an uncritical phenomenology of action and the fuzzy use of “normative”. Accounting for the normativity of action with care entails a realistic picture of the struggle between what one cares for and often repressive social rules. (shrink)

This article explores the philosophical underpinnings that guided the Framers of the US Constitution in establishing a government, following its War of Independence (1775-1783), as the first large republic in history. The Founding Fathers first began convening formally during the First Continental Congress in 1774, though the path to independence escalated with the Second Continental Congress in 1775. Central to their concerns was the protection of individual rights, a concept deeply rooted in Western political thought. These rights, including freedom of (...) speech, belief, and private property, were essential to safeguard against government overreach. The tyrannical rule of King George III constantly violated His Majesty’s American subjects’ fundamental rights, due to the high rising costs of the war with France. Although, it was the British government (the Parliament) which was in charge of running the Empire. Through the eyes of American subjects, it was the King who was responsible for many grievances such as “taxation without representation.” The Declaration of Independence (July 4, 1776), and the US Constitution (September 17, 1787) declare, enlist and protect those rights. The measures for protecting those rights for the people, and protecting the integrity of the government were among the two essential concerns for the Founding Fathers after gaining the independence. There is a delicate balance between these two concerns which has been engraved within the Constitution. American republic represents that balance to keep. The concern for saving the republic from foreign and domestic enemies remain as strong as before. After the Philadelphia Convention in 1787, when Benjamin Franklin was leaving Independence Hall, he was reportedly asked by a woman, “Well, Doctor, what have we got—a republic or a monarchy?” Franklin famously responded: “A republic, if you can keep it.” (McHenry, 85.). (shrink)

In Plato's Laws, the Athenian Visitor says that the best constitution is a mixture of monarchy and democracy. This is the theoretical basis for the institutions of Magnesia, and it helps the citizens to become virtuous. But what is meant by ‘monarchy’ and ‘democracy’, and how are they mixed? I argue that the fundamental relations in Plato's discussion of constitutions are those of authority and equality. These principles are centrally about the extent to which citizens submit to the judgment of (...) an authority and the extent to which they decide for themselves respectively—the extent to which they are ruled by themselves or ruled by another. The institutions of Magnesia reflect these principles in practice and provide a more nuanced way to understand Plato’s assessment of democratic institutions. (shrink)

A priori theories of justification of logic based on meaning often lead to trouble, in particular to issues concerning circularity. First, I present Boghossian’s a prioriview. Boghossian maintains the rule-circular justifications from a conceptual role semantics. However, rule-circular justifications are problematic. Recently, Boghossian (Boghossian, 2015) has claimed that rules should be thought of as contents and contents as abstract objects. In this paper, I discuss Boghossian’s view. My argumentation consists of three main parts. First, I analyse several arguments to (...) show that in fact, Boghossian’s inferentialist solution is not fully satisfying. Second, I discuss the matter further, if one accepts that basic logical rules are constitutive of meaning, that is, they constitute the logical concepts and the content of a rule is an abstract object, then abstract objects — like, for example, rules — could be constitutive of meaning. The question is whether conceptual priority is in the judgment or in the object and what theory of content is pursued. Grasping content as a matter of knowing how a word or concept behaves in inferences is not completely explicative. Finally, I contend that rules come to exist as a result of certain kinds of mental action. These actions function as constitutive norms. Logical rules are not abstract objects but ideal. What one construes as norms or rules of content may involve idealization, but this is because we share a language. (shrink)

This dissertation addresses a debate about the proper relationship between democratic theory and institutions. The debate has been waged between two rival approaches: on the one side is an aggregative and economic theory of democracy, known as constitutional economics, and on the other side is deliberative democracy. The two sides endorse starkly different positions on the issue of what makes a democracy legitimate and stable within an institutional setting. Constitutional economists model political agents in the same way that neoclassical economists (...) model economic agents, that is, as self-regarding, rational maximizers; so that evaluations of democratic legitimacy and stability depend on the extent to which the design of institutional rules and practices maximize individual utility by promoting efficient schemes of collective choice. Deliberative democrats, on the other hand, understand political agents as communicative reason-giving subjects who justify their preferences and positions on issues that jointly affect them in a process of consensus-directed discourse, or deliberation; so that evaluations of democratic legitimacy and order depend on the degree to which institutional norms and practices promote deliberation and draw upon deliberated public judgment. I argue that despite the numerous incompatibilities between constitutional economics and deliberative democracy—which amount to a 'deep divide'—an opportunity to produce a genuine synthesis of the two approaches arises inasmuch as it is possible to overcome several points of opposition in their separate research programmes. The central thesis of the dissertation is that it is possible to construct a bridge spanning the divide between constitutional economists and deliberative democrats, and that Dewey and Bentley's transactional view can facilitate this bridge-building project. Pursuant to this end, the points of opposition between the v research programmes are mediated by way of five concepts which, on balance, favor deliberative democracy and its feasible institutionalization. (shrink)

Pufendorf makes a clear distinction between the physical constitution of human beings and their value as human beings, stressing that the latter is justified exclusively by the regular use of the free will. According to Pufendorf, the regular use of free will requires certain inventions (divine as well as human) imposed on the free will and called moral entities. He claims that these inventions determine the moral quality of a human being as well as the standards according to which human (...) beings and their actions are able to be judged. This article examines the normative aspects of Pufendorf’s concepts of moral value and moral estimation in regard to the epistemological question of the accessibility of moral entities for human beings. In the first part, it reconstructs Pufendorf’s doctrine of moral entities and the place of moral estimation in this doctrine. In the second part, it presents Pufendorf’s account of the moral philosophy as a science in order to explain his theory of moral normativity as imposed, and the role of a person in regard to the own moral status. In the last part, it illustrates some consequences in regard to the problem of slavery in Pufendorf. (shrink)

Many of the most important social institutions—e.g., law and language—are thought to be normative in some sense. And philosophers have been puzzled by how this normativity can be explained in terms of the social, descriptive states of affairs that presumably constitute them. This paper attempts to solve this sort of puzzle by considering a simpler and less contentious normative social practice: table manners. Once we are clear on the exact sense in which a practice is normative, we see that some (...) practices can be normative in an interesting and non-trivial sense, but also explicable with merely descriptive resources. In addition to arguing that it is possible to explain normative practices with descriptive resources, this paper presents and defends just such an explanation—an account of the nature of table manners that appeals only to descriptive states of affairs. (shrink)

Austin's distinction between locutionary and illocutionary acts has offered a fruitful way of focussing the relation between language and communication. In particular, by adopting the distinction we attend to linguistic and communicative subjects as actors, not just processors or conduits of information. Yet in many attempts to explicate the constitution of illocutionary acts the subject as actor is subsumed within the role of linguistic rules or conventions. I propose an account of illocutionary acts in which rules or conventions (...) are secondary to what I call communicative skills. These skills are taken as the primary component of communicative competence. They are derived from the principle that linguistic communication is not ultimately a linguistic matter, but relates instead to the way a communicator uses language. This principle is found in the work of Donald Davidson, but Davidson has tended to concentrate on semantics, and leaves the details of linguistic communication for pragmatics. The aim of this paper is to defend the general principle and supply some pragmatic details. (shrink)

This paper gives an account of proxy agency in the context of collective action. It takes the case of a group announcing something by way of a spokesperson as an illustration. In proxy agency, it seems that one person or subgroup's doing something counts as or constitutes or is recognized as (tantamount to) another person or group's doing something. Proxy agency is pervasive in institutional action. It has been taken to be a straightforward counterexample to an appealing deflationary view of (...) collective action as a matter of all members of a group making a contribution to bringing about some event. I show that this is a mistake. I give a deflationary account of constitutive rules in terms of essentially collective action types. I then give an account of one form of constitutive agency in terms of constitutive rules. I next give an account of status functions—of which being a spokesperson is one—that also draws on the concept of a constitutive rule. I then show how these materials help us to see how proxy agency is an expression of the agency of all members of the group credited with doing something when the proxy acts. (shrink)

Anandi Hattiangadi packs a lot of argument into this lucid, well-informed and lively examination of the meaning scepticism which Kripke ascribes to Wittgenstein. Her verdict on the success of the sceptical considerations is mixed. She concludes that they are sufficient to rule out all accounts of meaning and mental content proposed so far. But she believes that they fail to constitute, as Kripke supposed they did, a fully general argument against the possibility of meaning or content. Even though we are (...) not now in a position to specify facts in which meaning consists, the view that there are such facts, and more specifically that they satisfy the intuitive conception of meaning which she labels ‘semantic realism’, remains a live option. Moreover, given.. (shrink)

The first part of the article examines some recent studies on the early development of social norms that examine young children’s understanding of codified rule games. It is argued that the constitutive rules than define the games cannot be identified with social norms and therefore the studies provide limited evidence about socio-normative development. The second part reviews data on children’s play in natural settings that show that children do not understand norms as codified or rules of obligation, (...) and that the norms that guide social interaction are dynamic, situated, and heterogeneous. It is argued that normativity is intersubjective and negotiable and starts to develop in the first year, emerging as a practical skill that depends on participatory engagement. Three sources of compliance are discussed: emotional engagement, nonverbal agreement, and conversation. (shrink)