Are There Constitutive Rules?

The philosopher John Searle is well-known for his work in the philosophy of language and in the philosophy of mind (see in particular the “Chinese room” thought experiment). He has also made an important contribution to social ontology with his books The Construction of Social Reality (1995) and Making the Social World (2010). An important feature of Searle’s account of the nature of social reality is his distinction between constitutive and regulative rules. Actually, he already made this distinction in 1969 in his work on speech acts. Searle’s point is that some rules are straightforward statements of the kind “Do X” or “If Y, then X”. Other rules however are of the form “This X count as Y in (circumstances) C”. The former are regulative rules, the latter are constitutive rules. The key difference is that constitutive rules make some kinds of actions or facts possible while regulative rules only regulate a practice that is not logically tied to the rule.

Consider the following facts: “I have been checkmated”, “Bill hits a home run”, “I have a 20$ bill in my wallet”. All these facts depend on constitutive rules that define what counts as a checkmate, a home run or a 20$ bill. Without these rules, the above facts cannot exist. Now, contrast with the fact “In Britain, people drive at the left side of the road”. This fact only depends on a regulative rule (“if you’re in Britain, then drive at the left side of the road”); the very practice of driving does not seem to depend on the peculiar content of the rule.

The distinction has some intuitive appeal. It also seems significant because constitutive rules, unlike regulative rules, have the ability to create the institutional reality. This is reflected in the fact that the “count-as” locution generates what Searle calls status functions: a constitutive rule attributes to some entity X (which can be a person, an object or anything else) a status defined in terms of deontic powers. For instance, the rule “such and such pieces of papers count as dollars in the United States of America” gives these pieces of paper the power to buy things. Once the rule is collectively accepted in some community, pieces of paper with the appropriate characteristics actually have this property. So, constitutive rules generate institutional facts.

However, Searle’s account of constitutive rules has been widely criticized. The most significant critique has been that the distinction is a false one: all rules are both constitutive and regulative. Whether or not all regulative rules are also constitutive is a complex debate. In some ways, the rule “if in Britain, then drive at the left side of the road” is constitutive of the practice “to drive in Britain”: assume some possible world identical to the actual world except for the fact that people in Britain are driving at the right because the rule says so. Then, the practice “to drive in Britain” would not be the same. This involves a problem of identity on which I will briefly return at the end of this post. The reverse is easier to analyze: all constitutive rules can be reformulated as regulative rules. This point is forcefully made by Frank Hindriks in this paper (see also here). He shows that all constitutive rules actually consist in the conjunction of two propositions corresponding respectively to a “base rule” and a “status rule”. Consider for instance the case of a proto-institution we call property* which is defined by the constitutive rule “X[this piece of land l] counts as Y[property* of person p] in C[p was the first person to claim so and such and such other conditions obtain]”. The base rule states the conditions for the piece of land to be owned by person p:

Base Rule: if the set of conditions c obtain, then l is property* of p.

Suppose that the proto-institution of property* grants the right of exclusive use and nothing else. Then, the status rule is:

Status Rule: if l is property* of p, then p has the right of exclusive use of l.

It should be noted that both the base rule and the status rule are of the form “if… then”, i.e. they are regulative rules. Now, it is easy to demonstrate that Searle’s distinction between constitutive and regulative rules seems merely to be a linguistic one, rather than logical or ontological. Indeed, we can define the rule for property* by combining the base rule and the status rule:

Rule for Property*: if the set of conditions c obtain, then p has the right of exclusive use of l.

Once again, the statement of the rule is of the form “if… then”. Moreover, the rule is stated without any reference to the institution of property* itself. It seems that we have reduced a constitutive rule to a regulative rule and thus that constitutive rules have nothing specific. They are merely a linguistic artifact.

One may think that this is only due to Searle’s specific account of the distinction and that it may be possible to defend it in some other way. For instance, in his paper “Two Concepts of Rules”, John Rawls seems to offer an alternative way to account for constitutive rules. Rawls distinguishes between what he calls the “summary conception” and the “practice conception” of rules. The former defines a rule as a mere behavioral pattern generated by acts persons have made because of their efficiency. According to the latter, a rule defines a practice in the sense that the practice consists in following the rule. For instance, “hitting a home run” or more generally the practice of “playing baseball” consist precisely in the fact of following some set of rules.

However, the same problem remains, as shown by David Lewis in his article “Scorekeeping in a Language Game” (note that Lewis does not make reference to Rawls’ article). Consider any well-run baseball game G (either a professional game or an informal game between friends). At any stage t of G, there is a score S which is defined by the septuple of numbers < rv, rh, h, i, s, b, o > with rv and rh the number of runs of the visiting team and the home team respectively, h the half (first or second) in the inning, i the inning, s the number of strikes, b the number of balls and o the number of outs. According to Lewis, a codification of the rules of baseball would consist in the conjunction of four kinds of rules:

1) Rules specifying the evolution of S: if S(t) is the score at stage t, and if between t and t’ the players behave in a manner m, then the score S(t’) is determined in a certain way by both S(t) and m.

2) Specifications of correct play: for any score S(t) and any other stage t’, there is a set M of manners to behave which corresponds to correct play.

3) Directives concerning correct play: throughout G (i.e. for all tt’ sequences), players ought to adopt manners to behave belonging to M.

4) Directives concerning scores: players have behave such as their teams score the maximum runs and the opposing teams the minimum runs.

Lewis notes that sets of rules 1) and 2) correspond to constitutive rules, while sets of rules 3) and 4) rather correspond to regulative rules. Consider in particulars rules about the evolution of score S. That these rules cannot be seen as a mere summary of past behaviors is reflected by the fact that the evolution of score is both a function of how the players behave m and of the current score S(t), i.e. S(t’) = f(S(t), m). The function f encompasses a set of constitutive rules regarding, for instance, what counts as a strike. The way the players behave seems not sufficient as such to make the score evolve.

But this is clearly a linguistic artifact, again. As Lewis states, “[o]nce score and correct play are defined in terms of the players’ behavior, then we may eliminate the define terms in the directive concerning requiring play and the directing concerning scores”. In other words, constitutive rules can be reformulated in regulative rules, which themselves can be stated as summary of (past) behaviors. The implication seems to be that there is no social reality beyond the actions of persons: institutions are reducible to individual behavior, and there is nothing more to the social reality.

There may be several ways to avoid this conclusion however. A first possibility is suggested by Hindriks in the article I have linked to: the fact that the distinction between constitutive and regulative rules is linguistic does not mean that it is ontologically and scientifically irrelevant. The debates over reductionism in science give a great illustration. In principle, all facts about the economy (“interest rates are rising”, “growth is slowing”, “Amazon is losing money”, “Bill buys a car”) can be described without any economic terms and concepts. It could be possible to describe all these facts as facts about the movement of atoms and molecules. But not only this would be extremely complicated, this would also be unhelpful to explain and to predict economic phenomena. The distinction between constitutive and regulative rules can thus be grounded not on ontology, but rather on a pragmatic account of scientific explanation and prediction.

Another alternative consists in acknowledging that the distinction is not clear-cut. It may well be that all rules are both constitutive and regulative. But our attitudes toward rules may vary. In a given community and at a given time, it may be a fact that a rule is regarded as being constitutive of some practice or institution, while others are not. Compare for instance a proposal to create a four-points basket in basketball with another one making tackles permissible. Both rules would change the nature of the game, but while the former would probably not be rejected on the ground that “this is not basketball”, the latter probably would. The point is that rules are constitutive not per se, but through (or because of) our practices and attitudes toward them. Behind these attitudes and practices, lies the difficult issue of identity: what is it to an institution to be this institution and nothing else according to some community? This is a subject for another post.