The New Role of the Constitutive Rule

*The author is a post-graduate student of philosophy at University of St Andrews.

The author gratefully acknowledges helpful comments from Uskali Mäki and Raimo

Tuomela. Furthermore, the author thanks the members of the philosophy reading group

Gavagai for their constructive criticisms.

The New Role of the Constitutive Rule

By FRANK A. HINDRIKS*

ABSTRACT. Searle used to analyze institutional facts in terms of theconstitutive rule. In his more elaborate account in The Constructionof Social Reality he introduces the notion of a status function. The“counts as” locution is central to both the constitutive rule and the status function. The main question I ask is what role is left forthe constitutive rule after the introduction of the status function. Inorder to answer this question, I start by analyzing the notion of astatus function. An examination of the relation between status func-tions and the function of representation reveals that the former is aspecies of the latter. An exploration of the relation between statusfunctions and collective acceptance reveals that Searle does notprovide an argument as to why collective acceptance is required forinstitutional facts. Searle’s new account goes beyond his old analysisof institutional facts in terms of the constitutive rule. Rather thandeclaring the notion to be redundant, Searle assigns the constitutiverule a new role: it is to account for the fact that there can be coun-terfeit instances of a subclass of institutions, including, for example,that of money. This subclass consists of institutions that are codified.

I

Introduction

IN A SUMMARY OF HIS BOOK THE CONSTRUCTION OF SOCIAL REALITY (1995;henceforth CSR), Searle claims that “[t]he ontology of institutionalreality can be explained using exactly three concepts: collective intentionality, the assignment of function and constitutive rules”(1997a: 427). All of these concepts figure in his full-blown accountof institutional facts as he presents it in CSR. In his earlier work, Searle

American Journal of Economics and Sociology, Vol. 62, No. 1 (January, 2003).© 2003 American Journal of Economics and Sociology, Inc.

explained what institutional facts are in terms of the constitutive ruleonly (see Searle 1969a [1964] and 1969b). This may make one wonderwhat role is left for the constitutive rule in Searle’s new and moreelaborate account. Once one notices that the “counts as” locution—which Searle used and still uses for explaining what constitutive rulesare—is at the heart of his new notion of a status function as well,this question becomes especially pressing.

The main aim of this paper is to appreciate the role that the constitutive rule plays on Searle’s recent account of institutional facts.In order to achieve this, I start by discussing the other two key con-cepts of Searle’s social ontology: collective intentionality and theassignment of function. I do this in order to show that, in Searle’srecent conception of them, institutions are combinations of a specialkind of collective intentionality and a special kind of function: col-lective acceptance and what I will call the function of “counts as” rep-resentation. This suggests that the first two concepts together fulfillat least part of the role that the third concept—the constitutive rule—used to play in Searle’s account of institutional facts. I will show thatrather than declaring the notion redundant, Searle has given the con-stitutive rule a new role. This role is to account for the fact that therecan be counterfeit instances of certain institutions, whereas such apossibility of abuse does not arise in the case of other institutions.

Some of the things that are crucial for interpreting Searle’s accountare mentioned only in passing. For instance, the fact that the statusfunction is a non-causal one is mentioned only a couple of times.Searle is almost completely silent on the question of how the statusfunction is related to the function of representation. I will argue thatthe former can be regarded as a species of the latter. In addition tothis, there is only one passage in CSR that reveals the new role thatthe constitutive rule is supposed to play in Searle’s account of insti-tutional facts. The difficulty of interpreting Searle on this matter canbe illustrated as follows. An obvious place to look for the role thatthe constitutive rule plays in Searle’s account of institutional facts isa section of Mind, Language, and Society (1999; henceforth MLS) withthe title “Constitutive Rules and Symbolism.” The reason why readingthis section does not help much is that the term “constitutive rule”does not appear in it at all.

186 American Journal of Economics and Sociology

In spite of the fact that Searle’s work is quite accessible, interpret-ing it is not a trivial matter. I hope my discussion of his ideas willhelp to avoid some misunderstandings that can easily arise. My analy-sis will result in a reconstruction of Searle’s social ontology (SectionVI). If it is not a completely accurate presentation of Searle’s views,I hope it will be an improvement.

In Section II, I discuss the assignment and performance of func-tions and the distinction between agentive and non-agentive func-tions. In Section III, I consider the notions of collective intentionalityand status functions. Subsequently, the form or structure of the kindof collective intentionality involved in institutional facts—collectiveacceptance—is elucidated. It turns out to be constitutive of rights andobligations. In addition to this, I indicate how similar the notions ofa status function and that of a constitutive rule appear to be. In SectionIV, I elaborate on the nature of status functions by pointing out thatstatus functions are non-causal agentive functions, and, hence,surpass the physical features of the objects on which they areimposed. Furthermore, I discuss the relation between the function ofrepresentation and the status function. Section V discusses the rolethat is left for the constitutive rule. Section VI presents a reconstruc-tion of Searle’s social ontology based on the preceding analysis.Finally, Section VII summarizes my main conclusions.

II

Functions, Their Assignment, and Their Performance

THE ASSIGNMENT OF FUNCTION IS ONE OF THE CORE NOTIONS of Searle’s socialontology. Searle circumscribes the notion of a function by explicat-ing some of its features. A function is observer-dependent, whichmeans that it can only be assigned by intentional agents. It can beassigned to or imposed on an object, a person, or an event. Somekind of purpose is involved in all assignments of function, and theperformance of a function can be evaluated in terms of how con-ducive it is to achieving that purpose. Hence, assigning a functionintroduces normativity, as objects can be good or bad at realizing thepurpose that comes with the function. The kind of normativityinvolved is what I will call “teleological normativity,” in light of the

Hindriks on Searle 187

following passage: “The normativity is a consequence of the fact thatthe functional attribution situates the causal facts within a teleology”(MLS: 122; cf. CSR: 14).

Functions can be assigned to natural phenomena as well as toobjects that are specifically created to serve a certain purpose, in other words, to artifacts. Furthermore, functions may be agentive ornon-agentive, depending on whether a practical or a theoreticalpurpose is involved. In case of agentive functions, “the ascription offunction ascribes the use to which we intentionally put these objects”(CSR: 20; emphasis in original). Non-agentive functions are imposed“as part of a theoretical account of the phenomena in question” (CSR:20).

Agentive functions can be assigned to natural phenomena as wellas to artifacts. A chair is an example of the latter, whereas a log thatis used as a bench is an example of the former. Both objects are usedfor some practical purpose. An example of a non-agentive functionis a heart that pumps blood. The theoretical purpose one may ascribeto the pumping of a heart is that of promoting life and survival.1

The person who uses an object for an agentive function does nothave to be the person who imposed or assigned the function. Shemay not even be aware that the object has that function. Searle givesthe example of a drive shaft of a car: “Thus most car drivers are prob-ably unaware that the function of the drive shaft is to transmit powerfrom the transmission to the axles, but all the same that is its agen-tive function” (CSR: 21).

As we have seen, only intentional agents can assign functions.Intentionality itself is observer-independent, since its existence is notdependent on anybody’s attitude toward it (MLS: 117). The functionthat is assigned, however, is observer-dependent. One of the func-tions that can be assigned is intentionality or representation. If thatis done, derived intentionality is created, which is—by implication—observer-dependent. Meaning is a form of derived intentionality,according to Searle (MLS: 141). It follows that meaning is created by assigning the function of representation, that is, by intentionallyimposing the function of standing for or representing something else,or imposing that of intentionality on something that is not intrinsi-cally intentional (CSR: 21).


III

Collective Intentionality and Status Functions

THE SECOND KEY CONCEPT IN SEARLE’S SOCIAL ONTOLOGY is collective intentionality. What Searle calls the form or structure of collectiveintentionality may simply be “we-intend” (CSR: 26). If the collectiveintentionality is shared between two or more persons, a social factexists (MLS: 121).2 An example of a social fact is two people goingfor a walk together. The intention involved here is an intention-in-action. Collective intentionality can be used to assign functions, justas individual intentionality can (CSR: 39).

Whereas all the functions discussed up to now can be assigned andperformed by an individual, there is a special class of functions thatrequire acceptance by a collective in order to be performed. This classconsists of status functions: “[T]he imposition of [a] status function. . . has to be collectively recognized and accepted or the function willnot be performed” (CSR: 46).

The main sentence used by Searle to explicate the nature of statusfunctions is the following: “[T]he function assigned to the objectcannot be performed solely in virtue of the object’s intrinsic physicalfeatures” (CSR: 39). This observation is frequently linked to therequirement of collective recognition of status functions: “[S]ince thefunction in question [a status function] cannot be performed solely in virtue of the physical features of the X element, it requires ouragreement or acceptance that it is performed” (CSR: 46). In Searle’sframework, agreement or acceptance is a special kind of collectiveintentionality (see below). Status functions surpass the physical fea-tures of the object because of the collective intentionality that isrequired for their performance. The passage quoted suggests thatagreement is a necessary condition for a function to surpass the phys-ical features of an object.

We will return to this condition in the next section. First, however,both the form of the collective intentionality involved in, and thenature of, status functions need to be explicated in more detail. Searleprovides two accounts of the way in which collective intentionalityis involved in institutional facts. These accounts are meant to be


complements to one another. (Note that Searle uses the term “form”to designate the abstract presentation of the content of the intentionalstate.)

In his first explication—what I will call the function account—Searlerelates the collective intentionality required for institutional facts tothe “counts as” locution:

the form of the assignment of the new status function can be representedby the formula “X counts as Y in C.” This formula gives us a powerfultool for understanding the form of the creation of the institutional fact,because the form of the collective intentionality is to impose that statusand its function, specified by the Y term, on some phenomenon namedby the X term. (CSR: 46; emphasis in original)

Furthermore, it is said that “we have good reasons to believe that the‘counts as’ locution specifies a form of collective intentionality” (CSR:95). Searle uses the “counts as” locution in order to explain the notionof a status function (see, for example, the preceding passage). Healso uses it to explicate the notion of a constitutive rule. As was saidearlier, this prompts the question of how the status function relatesto the constitutive rule.

It is actually hard to see how the constitutive rule is different fromthe status function. Searle explicates the constitutive rule in terms ofstatus and collective acceptance, the same terms that he uses toexplain status functions (CSR: 44). In a section entitled “ConstitutiveRules and Symbolism,” Searle talks about status functions and the“counts as” locution, but he does not mention the constitutive rule orthe word “rule” at all (MLS: 152–56). There is only one clue in Searle’swriting as to how they are different. Searle claims that the applica-tion of the constitutive rule is identical to the imposition of the statusfunction, if that imposition has become a matter of general policy (CSR:48). In Section V, I will discuss what this means and what it impliesfor the role of the constitutive rule in Searle’s social ontology. Here,the important thing to recognize is that the “counts as” locution isinvolved in both the status function and the constitutive rule.

The second explication of the form of the collective intentionalityinvolved in institutional facts is related to deontic or conventionalpower and will be referred to as the deontic power account.3 Con-ventional power may either be positive or negative. Positive power


amounts to a right to do something, and hence enables actions of anindividual or a group. Negative power, on the other hand, requiresaction and constitutes an obligation. Searle examines what he callsthe intentional structure of institutional facts (CSR: 104). He now usesthe notion of power status function, and writes that the propositionalcontent of such a function is (S does A) (CSR: 104). Acceptance oragreement plays a prominent role in Searle’s ideas about the collec-tive intentionality required for these power status functions. Thisfollows from his explication of the structure or form of the collectiveintentionality involved in conventional power: “We accept (S haspower (S does A))” (CSR: 104, 111).

Searle uses terms such as acceptance, agreement, and recognitioninterchangeably. They are all matters of belief (CSR: 62; cf. 94). Inline with this, Searle writes that money is money in part because itis believed to be money (MLS: 114). According to Searle, humanagreement is a form of collective intentionality (CSR: 51) and statusfunctions are constituted by collective intentionality (CSR: 44; cf. MLS:128–29). Furthermore, it is said that collective acceptance is constitu-tive of power: “[C]ollective acceptance itself is a mechanism for thecreation of power” (MLS: 132; cf. CSR: 96). Combining these elements,the following picture emerges: agreement or collective recognition isa special form of collective intentionality that is constitutive of whatSearle sometimes calls power status functions, which enable orrequire actions. This second explication of the form or structure ofcollective intentionality in terms of agreement—the deontic poweraccount—is meant to be complementary to the first in terms of“counts as”—the function account. The extent to which they are isdiscussed at the end of the next section.

Note that an individual can impose a status function. A collectiveneeds only to be involved in a derivative way, in that it has to havegranted the individual the power to impose status functions. Subse-quently, collective acceptance is needed for the performance of thestatus function. That the imposition and performance of a status func-tion are separate issues follows from this passage:

Suppose a conventional power-creating agency, such as the Departmentof Motor Vehicles, issues a driver’s license to an applicant S. What is the form of the collective intentionality? We need to distinguish the


intentionality of the agency from that of the surrounding society, whichmakes the whole system work in the first place. From the point of thesurrounding society, the form of the creation of the institutional power isWe accept (The agency creates (S is enabled (S drives a car))). (CSR: 106)

In this passage, the agency—which is a collective within Searle’sframework—does the imposition, whereas the collective acceptancecomes from the surrounding society. In one of the examples thatSearle uses frequently, that of meetings, an individual imposes thestatus function, while the ensuing institutional fact is recognized bya collective. Consider the following examples: “The meeting isadjourned” and “I appoint you chairman” (CSR: 34). These individualperformatives create institutional facts conditional on the individualhaving the power to do that.

IV

The Status Function and the Function of Representation

NOW THAT THE FORM OF THE COLLECTIVE INTENTIONALITY involved in theperformance of status functions has been explicated, we need to con-sider the relation between the function of representation and thestatus function. Reading Searle, one can easily get the impression thatstatus functions are different from agentive functions. However, statusfunctions are agentive functions, as is said (only) on pages 41 and87 of CSR. Furthermore, the status function turns out to be quitesimilar to the function of representation. The same terms—represent,symbolize, and stand for—are used to describe both functions. Inorder to appreciate both the similarity and the difference between the function of representation and the status function, we need toconsider what Searle says about representation, symbol, meaning, and(public) language.4

Consider the following passage:

The point of having symbolic powers is to enable us to represent realityin one or more of the possible illocutionary modes. In such cases weimpose intentionality on entities that are not intrinsically intentional. Andto do this is to create language and meaning in all its forms. . . . Sym-bolization is essential to the other forms of the imposition of institutionalfunction. (CSR: 99–100; emphasis added)


The first thing to note about this passage is that the words symbol-ization, represent, and intentionality are virtually identical in meaningas Searle uses them. Second, these features are seen as essential tolanguage, which Searle considers to be a set of institutions. Thepassage relates them to institutional function, which is the status func-tion. Thirdly, they are related to meaning, which is not necessarilyinstitutional on Searle’s view. We have seen in Section II that the func-tion of representation is central to meaning.

Another passage about symbolization or representation and institutional facts will help in locating the difference between non-institutional representation and institutional representation. A centralaspect of this consists in what the collective assignment or recogni-tion of the representation adds with respect to the individual assign-ment. In the case of language, this is the conventional or public natureof collectively assigned representations:

The feature of language essential for the constitution of institutional factsis the existence of symbolic devices, such as words, that by conventionmean or represent or symbolize something beyond themselves. . . . Myclaim that language is partly constitutive of institutional facts amounts tothe claim that institutional facts essentially contain some symbolic elementsin this sense of “symbolic”: there are words, symbols, or other conven-tional devices that mean something or express something or represent orsymbolize something beyond themselves, in a way that is publicly under-standable. (CSR: 60–61; emphasis in original)

Again, it is clear from this passage that the words mean, represent,and symbolize are very close in meaning in Searle’s account of them.Furthermore, this passage reveals that the distinguishing elementbetween the function of representation and status functions is the collective assignment or acceptance of the function, as it is the col-lective acceptance that makes the words or conventional devices pub-licly understandable.

In Searle’s account, the central difference between language andmeaning is that the former is essentially public, whereas the latter doesnot have to be public. The difference can be explicated using thenotions “sentence meaning” and “speaker meaning.” Speaker meaningmay be assigned by an individual and is not necessarily public (MLS:140). Sentence meaning, on the other hand, requires a collective and


is public. The same holds for language. The difference lies in the kindof intentionality that is involved, individual or collective.

Another important difference is that in individual assignments ofrepresentation that which is represented has to exist prior to beingrepresented, whereas in the case of collective assignments a newentity is created that does not exist independent from its being represented. This is done by representing an existing entity as beinganother entity. The new status of the entity requires collective recog-nition for it to have any significance.

The upshot of this analysis is that the status function is a speciesof the function of representation. In order to make this explicit, wecan refer to it as the function of “counts as” representation, and I willdo so when relevant. It requires collective acceptance—a special formof collective intentionality—in order for it to be performed, and thiscollective acceptance is constitutive of deontic power. The implica-tion is that the assignment of a status function involves special casesof two of the basic building blocks of social reality: the assignmentof function (the function of “counts as” representation) and collectiveintentionality (collective acceptance). From this it follows that insti-tutional facts are facts concerning collectively recognized functions of“counts as” representation.

In Searle’s account of them, status functions require collectiveacceptance for their performance as a matter of definition. In con-trast, the term “function of ‘counts as’ representation” as I use it isnot inherently or necessarily related to collective intentionality. Thishas two advantages. The first is that it becomes possible to defendthe view that a set of individuals can recognize such a function andthat no collectivity based on some collective intentional state isneeded. McGinn, for instance, argues against Searle that “[t]here arecases in our experience in which shared and coordinated ‘I-intentions’ will do the job” and provides money as an example(McGinn 1995: 39). The second advantage is that it enables us to fore-stall some confusions that can easily arise from reading Searle.

In Section III, I quoted a passage in which Searle suggests thatagreement is a necessary condition for a function to surpass the physical features of the object to which it is assigned. The same suggestion can be found in the following passage:


[B]ecause the physical features specified by the X term are insufficient toguarantee success in fulfilling the assigned function, there must be con-tinued collective acceptance or recognition of the validity of the assignedfunction; otherwise the function cannot be successfully performed. (CSR:45; emphasis in original)

Although this passage focuses on the continuation of acceptance, thelink (note the word because) between the insufficiency of the phys-ical features and the necessity of collective acceptance (note the wordmust) is clear.

There are two problems with this link. First, collective acceptanceis not necessary for a function to surpass the physical features of anobject in Searle’s own view. In order to establish this point, let us goback to Searle’s views about the function of representation and the(individual) meaning intention. In his book Intentionality (1983), heformulates the problem of meaning as follows: “How . . . do we getfrom the physics to the semantics?” (Searle 1983: 161). A few pageslater, Searle expands on this: “The problem of meaning is how doesthe mind impose Intentionality on entities that are not intrinsicallyIntentional? How is it possible that mere things can represent?” (1983:167). Searle argues that mere things cannot do this solely by virtueof their physical features. Intentionality or representation has to be(intentionally) assigned. As Searle is discussing the meaning intentionhere, an intention that can be had by an individual, there is no restric-tion on the kind of representation that suffices for going beyond themerely physical. The upshot is that the function of representation perse cannot be fulfilled simply by virtue of the physical features of theobject on which the function is imposed. Neither “counts as” repre-sentation nor collective acceptance are needed for this.

Second, even for those cases in which collective acceptance is necessary according to Searle, it is not clear whether it is the collec-tive acceptance or the kind of function that is involved that is respon-sible for surpassing the physical features. The term “function of‘counts as’ representation” is crucial for clarifying this point. Whenthe attention is limited to status functions and Searle’s definition isused, it is trivially true that agreement or collective acceptance isneeded for surpassing the physical features. The reason for this is thatstatus functions require collective acceptance for their performance


as a matter of definition. What remains unclear is whether the phys-ical features are surpassed by virtue of the collective acceptance, thefunction playing only a secondary role, or vice versa. Other thingsSearle writes suggest the latter. Consider the following passage:

It is part of the definition of status functions that the function cannot beperformed solely in virtue of the physical features of the object that hasthe status function. . . . But if that is so, then the agents involved in thecollective acceptance or recognition must have some way to represent tothemselves the fact that the object has the status function. Why? Becausethere is no way to read off the status function Y just from the physics ofthe X. . . . The only way to get to the Y status function is to represent theX object as having that status. (MLS: 154)

This passage suggests that the function of representation—in this casethe function of “counts as” representation—is the crucial factor in thecollective case as well. (A related point that can be made is thatdeontic power exists by virtue of collective acceptance rather thanbecause of the representation aspect involved in institutional facts.)

One might object to this as follows: since the function of “countsas” representation requires collective acceptance anyway, one mightjust as well build this into the definition of the function. Furthermore,one can argue that it does not matter much, because representationand intentionality are intimately connected in Searle’s account. Thefunction of representation in general and the function of “counts as”representation in particular are forms of derived intentionality. Thisimplies that intentionality has to be involved when one discusses rep-resentation. The problem with these objections is that they threatento obfuscate the need for an independent argument for the necessityof collective acceptance for performing the function of “counts as”representation; perhaps an aggregate of individual acceptances suf-fices. Searle does not provide such an argument.

In sum, the status function is a species of the function of repre-sentation. I have suggested using the term “function of ‘counts as’representation” instead in order to avoid making the link betweencollective acceptance and the function a matter of definition. Doingthis has two advantages. First, it helps in acknowledging that the keyfeature that makes it possible to surpass the physical features of anobject is representation. It is not crucial that this is derived from


collective instead of individual intentionality. Second, it enables us tosee that Searle does not provide an argument for his claim thatcollective acceptance rather than an aggregate of individual accept-ances is required for performing the function involved in institutionalfacts.

A. The Non-Causal Nature of the Function of Representation

This discussion may help to elucidate two other issues related to statusfunctions: the fact that status functions are non-causal functions andthe question as to whether the two accounts of the structure of collective intentionality required for status functions—the functionaccount and the deontic power account—are complementary. Thisdiscussion starts with the former. Searle contrasts status functions withcausal agentive functions, and a causally functioning physical objectwith a symbolic object (CSR: 41). The difference is explicated in thefollowing passage:

Notice that status-functions differ from causal agentive functions in regardto their language dependency. One can think that this is a screwdriverwithout any words or other linguistic devices because one can just thinkthat this thing is used to screw in these other things. No words at all arelogically necessary to treat and use an object as a screwdriver because itsability to so function is a matter of its brute physical structure. But in caseof status-functions, there is no structural feature of the X element suffi-cient by itself to determine the Y function. Physically X and Y are exactlythe same thing. The only difference is that we have imposed a status onthe X element, and this new status needs markers, because, empiricallyspeaking, there isn’t anything else there. (CSR: 69; emphasis in original)

From this passage, it can be concluded that it is language-dependence or representation as the key feature of institutional factsthat makes them non-causal in Searle’s view. That they are non-causalmeans that the relation between X and Y is a conceptual one.

That a certain function is non-causal should not be taken to implythat it couldn’t serve as a cause. Institutional reality is said to becausally efficacious (MLS: 114). Status functions can serve as causesby providing reasons for action, as is evinced by the followingpassage: “The Y term creates a status that is additional to the physical features of the X term, and that status has to provide reasons


for action that are independent of our natural inclinations” (CSR: 69).The function of representation itself, and, hence, the status function,is non-causal. The relation between X and Y is non-causal. However,the relation between Y and Z, if Z is a certain action, can be causal.

Note also that in this context Searle sometimes seems to forget thepossibility of individual assignments of the function of representation.Consider the following passage: “[W]ithin the category of agentivefunctions I distinguish between functions performed solely in virtueof causal and other brute features of the phenomena and functionsperformed only by way of collective acceptance” (CSR: 123–24;emphasis deleted). The key thing to notice here is that the distinc-tion between causal functions and functions performed in virtue ofcollective acceptance is not a complete one in that it leaves out theindividual assignment of the non-causal function of representationthat figures in Searle’s account of meaning (CSR: 23).

B. Status Indicators and the Complementarity Question

Now that the notion of a status function has been clarified, we mayreturn to the question (posed at the end of Section III) of how thetwo accounts of the structure of collective intentionality required forstatus functions relate to one another: Are the function account andthe deontic power account really complementary? In his review essayof CSR in Philosophy and Phenomenological Research, Tuomela writesthe following:

One can argue that Searle’s book presents two somewhat different aspectsor ideas about social institutions and institutional facts. The first empha-sizes the functions of social institutions and the second the deontic powersinvolved. These aspects have not been integrated together very well. . . .The notion of function does not occur in the later, deontic power accountalthough, being one of Searle’s central analytic concepts, it should havebeen emphasized in that account. (Tuomela 1997: 435–36)

Tuomela claims that the two accounts are not very well integrated.In contrast, I believe that the analysis of the nature of status func-tions given earlier shows that the two accounts are complements toone another—they are two sides of the same coin. Recall that the


function involved in institutional facts is that of “counts as” repre-sentation. If it is assigned, something new comes into existence. Thething to notice is that that which is represented has to be collectivelyrecognized. This collective recognition, in turn, is constitutive ofdeontic power. It follows that collective recognition combines nicelywith the function of “counts as” representation or the status functionon the one hand and deontic power on the other. It follows that theaccount in terms of status functions is not a rival of the account interms of deontic power. In this I agree with Searle, who writes in hisresponse to Tuomela that “[t]he function and the deontology go handin hand” (1997b: 451).

There is, however, one oddity in Searle’s theory that can be relatedto the existence of two accounts. Whereas the “counts as” locutioncan be applied to objects, events, and persons, a power status func-tion can only be assigned to persons. The notion of a status indica-tor sheds some light on this asymmetry. According to Searle, driver’slicenses and passports are status indicators, whereas money is not. Inthe former two cases, both the power status function and the “countsas” locution are related to a person. In the case of money, the “countsas” locution is applied to the object, which is an institutional object,whereas the power status function is assigned to an intentional agent,who is whoever possesses the object. Searle does not provide a criterion for whether an institutional object is a status indicator. Note,however, that driver’s licenses and passports, which are status indi-cators, are linked to particular individuals, whereas money is not andis easily transferable instead. The upshot is that the function and thedeontic power accounts are complements in an unproblematic waywhen both are applied to persons, but problems arise when the func-tion account is applied to something else.

V

The New Role of the Constitutive Rule

WE SAW EARLIER THAT SEARLE USES THE “COUNTS AS” LOCUTION for analyz-ing both the notions of the constitutive rule and the status function(see Section III). Furthermore, we saw that according to Searle the


application of the constitutive rule is identical to the imposition ofthe status function if that imposition becomes a matter of generalpolicy. In this section, we turn to the question of what this conditionconcerning the relation between the status function and the consti-tutive rule amounts to. Without it, the two notions would play thesame role in Searle’s theory, and one of them could be declaredredundant. As Searle uses the notion of a function for other purposesas well, the obvious candidate is the constitutive rule. Hence, thequestion that I will ask is what role remains for the constitutive ruleafter the introduction of the status function.

As said in the introduction, Searle used to explain what institutionalfacts are in terms of the constitutive rule only. In his book SpeechActs he writes, for instance, that institutions are “systems of constitu-tive rules” (Searle 1969b: 51). He goes on to claim that “[e]very insti-tutional fact is underlain by a (system of) rule(s) of the form ‘X countsas Y in context C’ ” (ibid.: 51–52). From the discussion of Searle’smore recent ideas in Sections II through IV, one can easily get theimpression that Searle now takes institutions to be systems of statusfunctions (although he still claims that institutional facts only existwithin systems of constitutive rules [MLS: 123]). The question mayarise whether the constitutive rule has been replaced by the statusfunction and no longer plays an independent role.

There is some sense in declaring the constitutive rule to be redun-dant, because Searle’s analysis of institutional facts in terms of statusfunctions goes beyond anything he has said about them earlier, aswill be clear from the previous sections. An example of this is thatby introducing the notion of collective acceptance, Searle has provided an analysis of how institutional facts depend on the beliefsthat people have about them. An implication of declaring the notionredundant is that Searle would no longer have to face the charge thatthe distinction between the constitutive rule and the regulative rule,to which he used to contrast the constitutive rule, is not clear (see,for instance, Ruben 1997). Searle could have come to prefer thenotion of a function to the notion of a rule and have switched froman account of institutional facts in terms of the constitutive rule toone in terms of status functions. However, it appears that rather thandeclaring it redundant, Searle has assigned it a new role.


Before we turn to the condition by which the status function andthe constitutive rule are related, I want to make sure that we do notmiss other differences between the two notions. Searle’s explicationof institutional facts in terms of the status function is intimately inter-twined with the notion of a constitutive rule and that of the “countsas” locution. That a piece of paper acquires a new status can berephrased as “the piece of paper counts as money.” “Counts as” seemsto be equivalent to “counts as having the status of,” as is evidencedby the following passage: “[Constitutive rules] are always of the logicalform: such-and-such counts as having the status so-and-so” (MLS:123–24). Maybe the somewhat stronger conclusion that “counts as” isequivalent to “has the status of” can even be drawn. All in all, onegets the impression that the constitutive rule and the status functionare just different terms for the same concept.

In the following passage, Searle describes three features of theapplication of the constitutive rule:

So the application of the constitutive rule introduces the following fea-tures: [1] The Y term has to assign a new status that the object does notalready have just in virtue of satisfying the X term; [2] and there has tobe collective agreement, or at least acceptance, both in the imposition of that status on the stuff referred to by the X term and about the func-tion that goes with that status. [3] Furthermore, because the physical fea-tures specified by the X term are insufficient by themselves to guaranteethe fulfillment of the assigned function specified by the Y term, the newstatus and its attendant functions have to be the sort of things that can beconstituted by collective agreement or acceptance. (CSR: 44; numbersadded)

One might expect that such a detailed passage about the constitutiverule would reveal how the notion is different from that of a statusfunction. However, it will be clear from previous sections that the firstelement implies the second and third. In other words, if somethingis assigned a new status, it will be collectively recognized and thefunction will be one that enables new forms of behavior. The upshotis that the constitutive rule introduces the feature that the Y term is assigned a new status. Again, we have been unable to find a dif-ference between the two notions and our presumption that they areintimately related is confirmed.


Let us now turn to the condition and consider exactly what Searlewrites: “[W]here the imposition of status function according to theformula becomes a matter of general policy, the formula acquires anormative status. It becomes a constitutive rule” (CSR: 48; emphasisin original). Note that the “formula” refers to the “counts as” locution,as can be seen from the following passage: “[T]he form of the assign-ment of the new status function can be represented by the formula‘X counts as Y in C’ ” (CSR: 46). From these passages, it is clear thatthe difference between the constitutive rule and the status functionrelates to the status of the “counts as” locution. Only if it has a normative status is it a constitutive rule.

The next question to ask is what this normative status of the “countsas” locution is. Recall that functions introduce teleological normativ-ity (see Section II). If the constitutive rule is different from the statusfunction, the kind of normativity that is related to it had better beanother kind of normativity. A first indication as to the kind of nor-mativity that is involved in constitutive rules is given in the passagethat comes immediately after the qualification: “This is shown by thefact that the general rule creates the possibility of abuses that couldnot exist without the rule, such as counterfeit money . . . The possi-bility of such forms of abuse is characteristic of institutional facts”(CSR: 48). This passage reveals that the normative status of the con-stitutive rule is related to forgery and abuse.

This second kind of normativity is related to the self-referentialityof institutional facts. According to Searle, institutional facts are self-referential in virtue of the feature that they only exist because peoplebelieve or accept that they exist. With respect to some institutions(such as cocktail parties), this self-referentiality applies only to par-ticular instances, whereas with respect to others (such as money) itapplies to the kind of institution. Searle puts it in the following way,using the terms type and token to distinguish between kinds and par-ticular instances of institutions:

About particular tokens [of money] it is possible for people to be sys-temically mistaken. But where the type of thing is concerned, the beliefthat the type is a type of money is constitutive of its being money in away we will need to make fully clear. For some institutional phenomena,such as money, what I say applies more to types than to tokens, for others,


such as cocktail parties, it applies to each individual token. (CSR: 33;emphasis in original)

Note that the phrase “becomes a matter of general policy” does notsuffice for explaining the possibility of abuse if it is interpreted asbeing merely a matter of repetition. The reason for this is that mererepetition fails to distinguish between money and cocktail parties.Something more is needed. Later in the book, Searle relates the asym-metry between institutions such as money and cocktail parties to cod-ification. When he is again commenting on the self-referentiality ofinstitutional facts, he writes the following:

I think the reason we treat cocktail parties differently from money in thisregard has to do with codification. In general, if the institution in ques-tion is codified in an “official” form, such as in the laws concerning money,then the self-referentiality in question is a feature of the type. If it is infor-mal, uncodified, then the self-referentiality applies to each token. Codifi-cation specifies the features a token must have in order to be an instanceof the type. Hence a token may have those features even if no one thinksabout it, but the type is still defined in this self-referential way. (CSR: 53;emphasis added)

Only instances of codified institutions can continue to exist even ifno one has any beliefs about them. Instances of uncodified institu-tions cease to exist if nobody has the appropriate belief about them.If all guests at a cocktail party stop thinking about the gathering asa cocktail party it ceases to be a cocktail party. However, if no onethinks of a particular piece of paper as money, it does not therebycease to be money. The reason for this is that it is still a genuinetoken of a type of entity that is accepted as money.

In short, Searle explicates the second kind of normativity in histheory as the possibility of forgery and abuse. This in turn is relatedto the self-referentiality involved in institutional facts. In case of someinstitutional facts, the self-referentiality applies to the type rather thanto particular tokens. Such institutions can be abused in the sense thatone can make counterfeit instances of them. Such institutions are insti-tutions that have been codified.

How does all this relate to the constitutive rule? Searle is not veryclear on this. One might be inclined to say that, since normativity asthe possibility of abuse can be accounted for in terms of codification,


the constitutive rule is redundant after all. A more charitable reading,however, may be possible. The key to this is the relation betweencodification and the constitutive rule. Consider the following passage:

A test for the presence of genuine institutional facts is whether or not wecould codify the rules explicitly. In the case of many institutional facts,such as property, marriage, and money, these indeed have been codifiedinto explicit laws. Others, such as friendship, dates, and cocktail parties,are not so codified, but they could be. (CSR: 87–88)

This passage suggests that rules exist before an institution is codified,as the rules of the institution are codified themselves. The followingpassage provides some additional insights:

Such institutional patterns could be codified if it mattered tremendouslywhether or not something was really a cocktail party or only a tea party.If the rights and duties of friendship suddenly became a matter of somegrave legal or moral question, then we might imagine these informal insti-tutions becoming codified explicitly, though of course, explicit codifica-tion has its price. It deprives us of the flexibility, spontaneity, andinformality that the practice has in its uncodified form. (CSR: 88)

Apparently, formal institutions are codified institutions. In addition tothis, only in the case of codified and formal institutions, the “countsas” locution has become a constitutive rule rather than being a merestatus function. The passage also raises a question, however. It issuggested that if it mattered tremendously whether something is acocktail party or not, the institution of cocktail parties could be codified. The problem with this is that the question of whether something is a genuine instance of a certain institution arises onlywith respect to codified institutions. This implies that the situation isactually the reverse of what the passage says. As long as the institu-tion of cocktail parties remains uncodified, there can be no counter-feit instances.

Note that this analysis implies that the constitutive rule is no longerrelevant to all institutional facts. It is only relevant to institutional factsto which the self-referentiality applies to the institution type ratherthan to tokens, in other words, to formal institutions. The only caveatsthat need to be added are, first, that the constitutive rule might playa role in the circumstances C of instances of informal institutions and,second, that it might be relevant because of the role language plays


in all institutional facts. Note furthermore that Searle has introducedthe distinction between formal and informal institutions only recently.All this implies that the constitutive rule has been assigned a role thatit never had before, at least not explicitly.

In sum, the new role of the constitutive rule is to mark the dis-tinction between codified and formal institutions on the one handand uncodified informal institutions on the other. Only in case of theformer, the “counts as” locution has become a constitutive rule. Incase of the latter, it is merely a status function. There can only becounterfeit instances of codified institutions. Unfortunately, thereasons for codification and the exact relation between codificationand constitutive rules remain unclear.

VI

A Reconstruction of Searle’s Social Ontology

I AM NOW READY TO PRESENT MY RECONSTRUCTION of Searle’s social ontol-ogy based on the critical analysis that I have provided in the previ-ous sections. The assignment of function, collective intentionality, andthe constitutive rule are the three basic constituents of social reality.A function can be assigned by an individual or by a collective. A func-tion may be agentive or non-agentive, depending on whether a prac-tical or a theoretical purpose is involved. Agentive functions may becausal or non-causal. The function of representation is non-causal.Assigning a function to something involves assigning a purpose to it.Thus, a teleological kind of normativity comes with the assignmentof functions, as objects (and people and events) can be good or badin realizing a certain purpose.

There are different forms of collective intentionality. A simpleexample is that of a prior intention: “We intend to go for a walk.”Any fact that involves shared collective intentionality is a social fact.Hence, collective assignments of functions are social facts. A specialform of collective intentionality is collective acceptance or agreement.This form is constitutive of deontic power and is partially constitu-tive of institutional facts.

Institutional facts consist of a combination of special cases of thetwo basic constituents of social reality: collective acceptance and the


function of “counts as” representation. An institutional fact is createdwhen an entity X comes to be counted as Y or is represented as anentity Y with a certain function and is collectively accepted as such.The new entity Y is a placeholder for new forms of behavior. This isthe case because the collective recognition confers deontic power orrights and obligations on people. A person is presented as having acertain status and, if this status is recognized, is enabled to do thingsshe could not do otherwise.

Institutions can be formal or informal. Formal institutions have beencodified. Furthermore, in the case of codified institutions the functionof “counts as” representation has become a constitutive rule. Therecan be counterfeit instances of formal institutions, whereas such abuseis not possible in case of informal institutions.

VII

Conclusion

THE CORE QUESTION OF THIS PAPER HAS BEEN how the notion of a statusfunction relates to that of a constitutive rule in Searle’s account ofinstitutional facts as presented in The Construction of Social Reality.Answering this question requires a clear view of what a status func-tion is. First, we have considered how the status function relates tothe function of representation. The former turned out to be a speciesof the latter. In order to make this explicit, I have suggested to usethe term “function of ‘counts as’ representation” instead. Second, wehave considered how the status function relates to collective accept-ance. The claim that status functions require collective acceptance fortheir performance turned out to be a matter of definition rather thanone of philosophical argument.

The notion of a status function plays a role quite similar to the rolethe notion of a constitutive rule played in Searle’s initial account ofinstitutional facts as presented in Speech Acts. The main contributionof this paper is an appreciation of the new role that the constitutiverule plays in Searle’s recent account of institutional facts. Institutionalfacts depend on the beliefs of people. With respect to some institu-tions, such beliefs are required for all its instances or tokens. With


regard to other institutions, such beliefs are only crucial with respectto the type. The latter class of institutions are institutions that havebeen codified. This means that the features something has to have tobe an instance of the institution have been specified and that therecan be counterfeit instances of the institution. An example is money.In the case of this class of institutions, the relevant status functionshave become constitutive rules. Although the exact relation betweencodification and the constitutive rule remains unclear, the new roleof the constitutive rule is to account for the possibility of forgery inthe case of codified institutions.

Notes

1. Searle seems to believe that non-agentive functions can only beassigned to natural phenomena: “Some functions are not imposed on objectsto serve practical purposes but are assigned to naturally occurring objectsand processes . . . let us call these functions ‘nonagentive functions’ ” (CSR: 20;emphasis added). That only agentive functions are assigned to artifacts mayhave some prima facie plausibility. However, I do not see why non-agentivefunctions cannot be assigned to institutions. The metaphor of an invisiblehand operating to the benefit of society, in spite of individuals pursuing theirself-interest, seems to be a good example of a non-agentive function that hasbeen assigned to institutions.

2. In CSR it is said that any fact involving collective intentionality is asocial fact (p. 26). Only in Searle 1997b (p. 450) and MLS (p. 121) is the qual-ification added that the collective intentionality has to be shared. Searle’snotion of collective intentionality implies that an individual can have a col-lective intention. However, at least two individuals have to share a collectiveintention for a social fact to exist. Note that a shared collective intentionalstate is also constitutive of a social group. I have explored the relationbetween collective intentionality and social groups in Hindriks (2002; forth-coming), where I compare Searle’s theory to those of Raimo Tuomela (1995)and Margaret Gilbert (1989).

3. Searle starts out with distinguishing between symbolic and deonticpower, honor, and procedural steps to power and honor (CSR: 99–102). Lateron, however, deontic power turns out to be fundamental to all of these: “theclassification cannot stand as a well-motivated taxonomy because, roughlyspeaking, everything turns out to be deontic” (CSR: 109).

4. See CSR: 23 for the representing function, and pages 66, 68, 70, and75 for status functions and the constitutive rule.


References

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The New Role of the Constitutive Rule