In defence of constitutive rules

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.

Assertion: The Constitutive Rule Account and the Engagement Condition Objection

Many philosophers, following Williamson (The Philosophical Review 105(4): 489–523, 1996), Williamson (Knowledge and its Limits, Oxford, Oxford University 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 counterintuitive 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.

Can Groups Assert That P?

When a group or institution issues a declarative statement, what sort of speech act is this? Is it the assertion of a single individual (perhaps the group’s spokesperson or leader) or the assertion of all or most of the group members? Or is there a sense in which the group itself asserts that p? If assertion is a speech act, then who is the actor in the case of group assertion? These are the questions this chapter aims to address. Whether groups themselves can make assertions or whether a group of individuals can jointly assert that p depends, in part, on what sort of speech act assertion is. The literature on assertion has burgeoned over the past few years, and there is a great deal of debate regarding the nature of assertion. John MacFarlane has helpfully identified four theories of assertion. Following Sandy Goldberg, we can call these the attitudinal account, the constitutive rule account, the common-ground account, and the commitment account. I shall consider what group assertion might look like under each of these accounts and doing so will help us to examine some of the accounts of group assertion (often presented as theories of group testimony) on offer. I shall argue that, of the four accounts, the commitment account can best be extended to make sense of group assertion in all its various forms.

Lying, Acting, and Asserting

This chapter defends the intent-to-deceive conception of lying against the challenge posed by bald-faced lies. It argues that bald-faced lies aren’t lies, because they’re not assertions. The chapter begins by arguing that lies must be assertions. Next, it sketches a view of assertion according to which a constitutive rule of asserting is being responsive to evidence in a particular way. Then, focusing on two well-known examples of bald-faced lies, it argues that those speakers don’t assert anything; rather, they do something more like what an actor does. The argument thus removes an important objection to the intent-to-deceive tradition. It also offers a different way of thinking about lying. Defenders of bald-faced lies sometimes describe them as attempts to ‘go on record’. This chapter defends an alternate view according to which lying involves taking a kind of (epistemic) responsibility for the content of one’s utterance.

Assertion

In the past two to three decades, most of the philosophical attention that has been paid to the speech act of assertion aims to characterize the nature of the act. A first question that is pursued concerns where the speech act of assertion fits within the domain of assertives (the category speech acts in which a proposition is presented-as-true). Simply put, assertions are those assertive speech acts in which the speaker advances a claim. But what is it to perform this sort of speech act? What is the nature of the act? Philosophers have proposed six main answers. These include the attitude view (which characterizes the nature of the act in terms of its role in expressing belief), the grammatical view (on which assertion is picked out by the vehicles used to make acts of this kind, namely, declarative sentences), the common ground view (where assertion is understood in terms of its essential effect on a conversation’s common ground), the commitment view (where assertion is characterized in terms of the kind of commitment that is engendered or reconfirmed by the performance of acts of this type), the constitutive rule view (according to which assertions are individuated by the distinctive rule that governs acts of this type) and the no-assertion view (which holds that there is no unique, interesting speech act type picked out by ‘assertion’). Of these six views, the one that has received the most attention (both critical and supportive) is the constitutive rule view. Such a view has been developed (and criticized) at great length. A leading version of the constitutive rule view is the view that the rule in question requires that one assert only what one knows. The main considerations offered in defense of this version of the view include its role in explaining various features of our assertoric practice, including the paradoxicality of assertions of sentences of the form ‘p, but I do not know that p’, its role in explaining why propositions expressed with, for example, ‘My lottery ticket lost’ are not properly assertable on merely probabilistic grounds (even when the odds of one’s winning are arbitrarily small) and its role in explaining why ‘How do you know?’ is a proper response to an assertion (even when the assertion’s explicit content has nothing to do with the speaker’s knowledge). However, many authors have responded to these arguments for the knowledge rule, finding them unconvincing. Interestingly, a great amount of attention has also been devoted to forging connections between the speech act of assertion and a variety of other topics of philosophical interest. These include topics in philosophy of language (pragmatics, semantics), epistemology (the epistemology of testimony, the epistemology of disagreement, the nature of epistemic authority, the division of epistemic labor), metaphysics (the nature of future contingents, modality), ethics (the ethics of assertion; what we owe to each other as information-sharing creatures) and social and political philosophy (various forms of epistemic injustice, silencing).

Constitutive Rules and Agency

Chapter 7 first analyzes the concept of a constitutive rule in terms of essentially intentional activity patterns. Then it defines a form of constitutive agency in terms of that. Finally, it contrasts the account with John Searle’s. The rules of chess are constitutive rules. Following them brings into existence a type of activity that would not exist otherwise. The rules define an activity pattern that can be instantiated unintentionally. The rules are followed when it is instantiated intentionally. Thus constitutive rules are constitutive relative to an activity type defined as the intentional instantiation of a pattern of activity. Constitutive rules make available a form of constitutive agency in which what an agent does intentionally contributes constitutively to bringing about an essentially intentional activity type. Searle says constitutive rules have the form ‘X counts as Y in C’. But these instead define certain moments in activities governed by constitutive rules.

Essentially Intentional Action Types

Chapter 6 lays groundwork for explaining what a constitutive rule is and how they underwrite certain important forms of constitutive agency by giving an analysis of the concept of a certain category of essentially intentional action type, and locating it in a taxonomy of essentially intentional action types. It begins with an overview of essentially intentional action types. Next it analyzes one sort of essentially intentional action type as involving two components, a requirement that a certain activity pattern be instantiated and a requirement that it be instantiated intentionally, focusing on tic-tac-toe as an example. It distinguishes these sorts of essentially intentional action types from those defined by an intentionally pursued goal. It discusses briefly essentially intentional primitive action types, and then takes up a puzzle about intending to perform essentially intentional action types. It concludes with a taxonomy of essentially intentional action types by way of summary.

Philosophy of the Social Sciences

Naturalism is still facing a strong opposition in the philosophy of social science from influential scholars who argue that philosophical analysis must be autonomous from scientific investigation. The opposition exploits philosophers’ traditional diffidence toward social science and fuels the ambition to provide new foundations for social research. A classic anti-naturalist strategy is to identify a feature of social reality that prevents scientific explanation and prediction. An all-time favorite is the dependence of social phenomena on human representation. This article examines two prominent versions of the dependence thesis and concludes that they both fail. Contemporary social science is capable of accounting for the causal dependence of social reality on representation, and there is no reason to believe that social entities are ontologically dependent on the collective acceptance of a constitutive rule.

Status functions and institutional facts: reply to Hindriks and Guala

Hindriks and Guala (2014) hope to provide a unified account of institutional theory that will combine the accounts of regulative rules, constitutive rules, and equilibria. I argue that only the constitutive rule approach has any possibility of success, and that the other two cannot even pose the right questions, much less answer them. Hindriks and Guala think constitutive rules can be reduced to regulative rules. I argue that their reduction is mistaken. The key to understanding social ontology is understanding status functions.