Wojciech Żełaniec

Create to RuleStudies on Constitutive Rules

Zelaniec-625-6-fronte.indd 1Zelaniec-625-6-fronte.indd 1 02/07/13 15.5202/07/13 15.52

Żełaniec WojciechCreate to Rule. Essays on Constitutive RulesThese pages are part of a book published by LED Edizioni Universitarie.Click on the title page to be transfered to the book web page.

http://www.lededizioni.com/catalogo/625-zelaniec-create-rule.html

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PREFACE

This book contains some of my studies on constitutive rules (henceforth: CRs) written over the last ten or so years. Former versions of some of them have already been published (please find the due acknowledgments in the footnotes to the respective chapter-titles). To all publishers of these former versions I owe words of truly felt gratitude for their kind permission to republish the texts (with quantitatively small changes) in this volume.

In putting these studies together, I did not aim at perfect uniform-ity, let alone at a unified theory of CRs. (The chapters can be read out of sequence). Being is not a genus, as we know from the Philosopher, and neither is, I fear, constitutive rule; no rigorous philosophical theory valid for everything called a constitutive rule is, therefore, possible 1. But – sometimes perhaps too sceptical – considerations pertaining to various subspecies, aspects and guises of constitutive and «constitutive-ish» rules are possible and are a proper task of philosophy. I have not been success-ful in eliminating all (it is to be hoped, small) inconsistencies across the essays here and there; of some of them I am aware (such as e.g. the treat-ment of love in Ovid), but dealing with them would take up too much space and make the matters (look) more complex than necessary. I hope they will constitute (in various senses of this critical word) an occasion for some Readers to embark upon their own research on the topic.

This book is dedicated to the loving memory of my parents, Halina Anna Z.ełaniec, née Polkowska (1926-2011), and Antoni Z

.ełaniec (1925-2011).

My gratitude for their unfailing patience and support goes to my family, Friederike Schmidt-Z

.ełaniec and Kazimierz Franziskus Kilian Z

.ełaniec.

1 See Post. Anal. book 1, chapters 4-7.

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1.A SHORT INTRODUCTION

This book is on CRs (and this chapter is a short and gentle – if it at all is possible to be gentle in such matters – introduction to this book and to CRs themselves).

1.1. the work

CRs are rules that «constitute», that is, in one or another sense «give rise» to, or «create», new things, mainly, new social (legal, cultural …) things 1. Whenever a rule like that says something like «burlacs are / should be / may be something-or-other» 2 it is to be understood that a new type (kind) of entities is being created 3, whose essential part is, among other things, being something-or-other, or being obliged or having the right to some-thing-or-other. Rules of games and sports are excellent and prominent examples (they very clearly create games and sports) 4, as are also many basic laws, such as section I of the German Civil Code, which says: «The legal capacity of a human being begins on the completion of birth» 5.

1 Watch out: «to constitute» in this (causative) sense («to give rise to something») is rather unusual in common English, where this verb is often just a fancy variant of «to be», as in «this constitutes a danger» for «this is a danger», or else it means «to be element(s) or (constitutive) parts of» as in «bricks constitute a wall» or «tin and copper constitute bronze». 2 This is a typical, though not unique, form of a CR. 3 To be precise, it is (clear that it is) not enough that a Jack Sprat should say some-thing like that over tea for the type to be actually created. The type in order to exist must be furnished with a normative force, which, obviously, does not come from nowhere. See [1] on this. 4 In this context, a very good brief introduction is [2]. 5 English [3], German [4]. As an example of a CR (in Conte’s sense, a so-called «nomic-constitutive rule») mentioned in [5], 112. Azzoni’s book gives numerous exam-ples for all kinds of CRs, at least in Conte’s appositely broad sense.

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A short introduction

Such rules do not, or at least not primarily, describe, as do rules that tell us what happens «as a rule», that is, they are not like scientific laws or merely empirical generalisations («rules of thumb»). The German law just mentioned does not describe the legal capacity, in a way in which a biolo-gist may say when a birth itself begins (with the labour pains, say) or is completed: it, in a way, creates the legal capacity (and afterwards it can be interpreted as describing the legal capacity, but only because it had itself called it into being).

Do CRs, if they do not describe, prescribe anything (rules that pri-marily prescribe Searle calls «regulative rules», a phrase that is bound to infuriate an etymology scholar 6) 7? That is, do they tell us what someone ought to, must not, may or may not do, or what may or must not, ought to or need not be the case 8? They may seem to, as when they say something like «the bishop (in chess) may move only diagonally», but this is a dif-ferent sort of prescription than one that is addressed to a human being who happens to be a bishop (of a Church) or even to a bishop «as such». An example of the latter is Canon 388 § 1 of the Canon Law: «After the diocesan bishop has taken possession of the diocese, he must apply a Mass for the people entrusted to him each Sunday and on the other holy days of obligation in his region» 9. In this case, it is a pre-existing entity, a bishop, that is put under the obligation to say a Mass every Sunday for the faithful entrusted to him; in the former case (that of a chess bishop) the obligation is itself part of what it is; it is a «constitutive» (in a traditional sense of this word, see note 1, ch. 1) part of the chess bishop as such 10.

Rules that primarily prescribe typically pertain to things already existing 11, not constituted by themselves, and not constituted, in many

6 [6], 33 et passim. Note well: «rules that primarily prescribe» is not a definition of «regulative rules» in Searle’s sense. The matter is too complex to go into here. 7 For this aspect of things, see e.g. [7]. 8 There is a wider and a more narrow understanding of what it is (for a rule) to prescribe. On a wider reading, all so-called practical (i.e. action-directing) propositions prescribe, including imperatives and propositions like «it’s drafty in here» if taken as a request to shut a window or a door. On a narrower reading, prescriptive are just those rules whose linguistic formulation contains a so-called deontic operator, such as «must (not)», «may (not)», «need not» or «ought to» / «should». See [8], 205-207 for a brief discussion. Guastini thinks that prescriptive rules are typically formulated in the impera-tive mood ([9], 83) but this is a gross simplification at best; permissive rules, for instance, can scarcely be pressed into the imperative mood and there are other difficulties, too. Cf. [10], chapter VI and [11], 4-13. Searle, in pretending that all prescriptive («regulative» in his parlance) rules either have already been, or can «comfortably» be, paraphrased in the imperative-mood form, is being nonchalant: [6], 34. 9 English [12], Latin [13]. 10 As Maria-Elisabeth Conte (in her [14], 145) would have put it, a church bishop is an obiectum affectum, whereas the chess bishop is an obiectum effectum. The difference is like that between pressing somebody’s hand and clenching one’s fist, see [15], 248f. 11 This is, in a nutshell, the Searlean definition of «regulative rules».

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important cases, by any man-made rules at all. The Decalogue is the best example, as are, too, such laws as the Canada Shipping Act, 2001, which embodies such prescriptions as e.g. this:

The master of a vessel in Canadian waters and every qualified person who is the master of a vessel in any waters, on receiving a signal from any source that a person, a vessel or an aircraft is in distress, shall proceed with all speed to render assistance and shall, if possible, inform the persons in dis-tress or the sender of the signal. 12

Honouring or not one’s parents had existed for millennia before the proc-lamation of the Decalogue, helping or not ships in trouble had existed too, in Canadian waters as elsewhere, since the beginning of water navigation and long before the enactment of the Canada Shipping Act, 2001. In nei-ther activity is there anything rule-constituted, least of all constituted by the very rules in question 13.

And yet, it is true that, just like a CR, though it does not primarily describe, can be taken to describe something once that which it consti-tutes has come into existence, so it can also be taken to prescribe to that which it constitutes once it has been constituted 14 or, as the case may be, to make it possible for other rules to prescribe. The latter is very clearly the case with the German law constituting the legal capacity. The former – say, prescribing diagonal moves only to chess bishops – is different from classical prescribing as it is, in a sense, impossible to disobey a constitutive prescription. A church bishop who fails to celebrate a Mass every Sunday is perhaps a poor bishop but a bishop still (at least for some time), while a chess bishop which started moving like a rook, say, would cease being a chess bishop forthwith. In either case, a CR typically creates something to rule, that is, for it to become possible to govern the behaviour of that which has just been created. Hence the title of this book. Nevertheless, it is important to bear in mind that CRs describe and prescribe only sec-ondarily, once that which they constitute has come into being, and this happens in virtue of them, which is their primary function.

It is very important to realise and bear in mind that CRs are commonly taken to «constitute» in this new, somewhat idiosyncratic sense of the word, that is, to create or give rise to new things as types, not as tokens (as universals rather than as individuals, in traditional terminology). Every prescriptive rule can give rise to something new, viz. an individual piece of behaviour done for the sake of conformity with it – many not just can but

12 [16], article 131 (1). 13 But is not honouring one’s parents or helping other ships a qualitatively different thing after the rules (it could be asked)? I shall take up this question yet. 14 Which is why Searle likes to say or suggest that CRs not just constitute but also regulate, e.g. [17], 55. To be more precise: they first constitute and then regulate (govern by prescribing).

The work

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A short introduction

do constitute in this way and the law-abiding citizen rejoices in that … But classical prescriptive rules, such as «smoking prohibited in this room» pre-cisely because they are not constitutive in the sense intended here, presup-pose whoever or whatever they prescribe something to or about as already «constituted», given rise to, created, pre-existing, and can at most generate their addressee’s individual behaviour: bishops (church) are there already, so it makes sense to prescribe to them that they should say Mass for their flock every Sunday. But bishops (chess) are not at all there prior to a regula-tion like «moves only diagonally». To paraphrase Wittgenstein 15 a little: we cannot say «this is a bishop and it (may) move(s) only diagonally», because there is no bishop before the «moves only diagonally» rule has been laid down. The interchangeability of the prescriptive («may only move diago-nally») and the descriptive («moves only diagonally») styling of the rule is an indication, too, that it is constitutive. Catholic bishops ought to say Mass every Sunday but may fail to do so and yet (at least for some time) remain bishops; a chess bishop, in contrast, that does not – in defiance of the rule – move either not at all or diagonally immediately ceases to be a bishop.

Lest all of this should get too complex, let us now try a fresh start. John R. Searle (one of the most prominent, perhaps the most prominent, student of CRs) has proposed that most CRs assign a significance or a function or a new status to something pre-existing. He certainly has a point. The com-pletion of birth is given a new significance, that of the acquisition of the legal capacity, in virtue of section 1 of the German Civil Code. A piece of wood is assigned a new status to, that of a bishop of chess, in virtue of the relevant chess rules (if it is employed in a chess game, that is). Or take one of Searle’s favourite examples: «bills issued by the Bureau of Engraving and Printing count as money in the United States» 16. Searle thinks most or in any case great many CRs can be reduced, for a formulaic expression, to this form: «X counts as Y in context C» 17. «Y» stands, in this formula, for that which is constituted 18, while «X» stands for that which Y is (to be) constituted «out of» 19. Yet on closer reflection one sees that the cases are not quite like one another.

15 [18], 327f. See [19], 525f. 16 [20], 28. 17 E.g. [6], 35. Cf. [20], 28, 43-53. A very in-depth analysis and critique of this conception is found in [21], 117-140 (section III.6). On the «context C» part see [22]. 18 Or as that which is being ascribed to X. This corresponds nicely to an idea by Conte that CRs (at least some of them) neither describe nor prescribe (see the discussion hereon above) but ascribe, [7], 83, [23], 71. Conte makes a great deal of this tertium, justly so. 19 Which presupposes that things constituted are (always? often?) constituted «out of» something. This presupposition is questionable, see note 43, ch. 3.

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2.ON THE THREEFOLD IMPORT OF CONSTITUTIVE RULES 1

2.1. a quiCk anD Dirty introDuCtion

Rules (in all the various meanings of the word «rule») are notoriously and prominently important (it is, for instance, often of crucial significance to «play by the rules» 2, and sometimes to know how and when to break a rule; exceptions, too, are known for their capacity to confirm a rule 3), so the logical emphasis in the chapter-heading above must rest on «constitu-tive»: the import of constitutive, as distinct from all the others, rules. Now CRs come mostly in a tandem with regulative ones.

The distinction of «regulative rules» vs. «constitutive rules» was found or perhaps just «foreshadowed» at least as early as in Kant, but there is a modern sense of these terms with which the Kantian distinction has rather little to do 4. This modern sense has many origins, but one of them lies, arguably, in Rawls’ article «Two concepts of rules» of 1955 5. Rawls claims there that in the domain of human practices and institutions there are, basically, two kinds of rules. Rules of one kind define (concepts of)

1 Based on the text of my contribution to the XXI International World Congress of Philosophy in Istanbul, Turkey, in August 2003. The original version of the submitted text of this talk was for some time hosted by a post-proceedings site of the Congress, then, after the site had been shut down, it was without my authorisation put on a Chinese, I take it, educational resources site: http://www.docin.com/p-23894377.html. Slightly edited and modified, the text of my talk appeared in a Turkish translation as [79]. 2 See [80]. 3 This principle is sometimes fathered on Cicero, Balb. 32: quod si exceptio facit ne liceat, ubi non sit exceptum, ibi necesse est licere. 4 Kant’s «constitutive rule» is rather like a regulative rule in Searle’s sense: «Regel-mäßigkeit Ausübung ist entweder – Methode: Eine [bestimmte] Regel (a priori von) der Ausübung der Erkenntniße; Constitutive Regel oder Vorschrift», AA 16, 779. See [81], 15f. and [82], 539f. 5 [83]. Searle cautiously fathers the concept on Rawls in [17], 55.

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On the threefold import of constitutive rules

institutions, actions, states of affairs, objects. Rules of the other kind tell us what to do with objects, states of affairs etc. already existing 6. It is the former that subsequently came to be called «constitutive», while the latter are now known as «regulative». It is mainly John Searle who, by having taken up the Rawlsian distinction in his [17] and [6], is responsible for this terminological and conceptual development.

Not only Searle, however. Extensive research by Italian and Polish legal philosophers 7 (see, e.g., [26], [35]/[34] or [57]) has shown that the concept of a CR (the concept – as distinct from the mere expression «con-stitutive rule») has a long pre-Searle history, including more or less elabo-rate contributions by Edmund Husserl, Max Weber, Johannes Thomae, Ludwig Wittgenstein, Antonino Pagliaro (the first to speak of a regola costitutiva in our sense), John D. Mabbott, Ernst Mally, Alf Ross, Georg Henrik von Wright and many others. A very prominent student of CRs (before the invention of the term-of-arts «constitutive rule») has turned out to be the Polish legal philosopher Czesław Znamierowski 8 (he called it «norma konstrukcyjna», «construction norm» 9). Znamierowski presented a highly sophisticated theory of such rules and all kinds of entities they give rise to in his book Podstawowe pojęcia teorji prawa of 1924 10. The Polish tradition initiated by him lives on in the research of such scholars as Leszek Nowak or Zygmunt Ziembiński, and there have been, in the recent decades, significant publications in Italy on the topic, including those of Gaetano Carcaterra 11, Amedeo G. Conte, and Conte’s (students’) students 12. The field of research is, thus, still open, and it does not look as if it will be closed any soon. The relevant literature is growing, but it is still manageable.

6 To appease a Rawls scholar: this is an extremely gross simplification, of course. Rawls speaks there of two «views» (concepts, conceptions, ideas about) rules rather than kinds of rules themselves, see [83], 19ff. Also, his «summary view of rules» is closer to rules in the statistical sense of what has up to the present moment happened or been done in a certain way rather than to regulative rules in Searle’s sense. Finally, punishment is perhaps not the best example of what we need CRs for, as it is an age-old, extremely well-entrenched, and seemingly «natural» institution (I mean punishment as such, not as defined in any specific legal system). 7 See e.g. [26] or [57]. 8 [84]. 9 See (in Italian) [85], [86] and [87]. 10 [88]. See [89] and [90]. 11 [91], [92] and [93]. 12 Giampaolo Azzoni, Paolo Di Lucia, Edoardo Fittipaldi, Giuseppe Lorini, Tecla Mazzarese, Lorenzo Passerini Glazel or Piero Pollastro, to name just a few. This is the famous Contean school, whose motto, unlike the Pythagorean’s, is not αὐτὸς ἔφα.

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3.A LONG INTRODUCTION

Constitutive rules, this we know already, are rules that, in a sense, consti-tute or «create» or «give rise to» – and perhaps afterwards rule, too – that of which they are rules.

For this to be a real definition, however, it would have to be explained what a «rule» is 1, what it is for a rule to be a rule «of» something, and, most importantly in our context (seen that «constituting» is something like a differentia specifica in the definition provided) what the «constituting» here meant is.

Let it be said right at the beginning that there are no univocal answers to these questions. This is simply philosophy. Since Aristotle it has been common fate of philosophy’s specific «terms of art» that they λέγονται πολ λαχῶς 2, that is, are said in many different senses, which are, however, related in a philosophically interesting way 3. This is, too, the case with «rule of» and «constitute». It is an illusion to think that they might one day be defined in a univocal way, so that the definition is applicable to all of them in exactly the same sense. But do not be put off by the non-uni-vocity of these terms (they are not equivocal, either) – it is their peculiar philosophical charm that they shimmer with diverse meanings. Setting out their many meanings and the relations between these meanings constitute a major part of a philosopher’s (indeed, any reflecting person’s) intellec-

1 [100]. Robles seems to be one of not too many philosophers of law who have ever asked themselves that question. 2 Metaph. 1003a33-35. See [101]. 3 Metaph. 1003b: «The term ‘being’ is used in various senses, but with reference to one central idea and one definite characteristic, and not as merely a common epithet. Thus as the term ‘healthy’ always relates to health (either as preserving it or as producing it or as indicating it or as receptive of it)». The many senses of a philosophical «term of art» are not, in other words, like the items of the famous Borgesian «Chinese» classifica-tion of animals, see [102].

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A long introduction

tual work on CRs. So we are perhaps better advised not to complain that there is not one concept of a CR 4.

But first off, and before I proceed to that work: rules of games and sports are commonly considered excellent examples CRs; in fact, they are, by some students, treated as if they were the most important examples or the only ones deserving analysis, which is not true. Yet, sports and games are an excellent example in that they demonstrate very conspicu-ously what it is for CRs to «constitute» or «create» new forms of behaviour with a whole retinue of attendant items and other «praxemes», units of a type of «praxis», activity or conscious behaviour 5. The rules of chess, for example, regulate, it is true, the game and the behaviour of those who play it (although this behaviour is additionally regulated by other rules as well), and this enjoys an epistemological priority (is the first thing that we see) but they also, nay, ontologically speaking first and foremost, «create» that game, in the sense that there would have been no chess if these rules had not existed (although, clearly, there might have been something else, called «chess»). It is extremely unlikely, to say the least, that human beings should behave as if (in the most liberal, latitudinarian, sense of «as if») they were playing chess while completely ignorant of the rules, and even if some did so behave by sheer coincidence, their behaviour would not be playing chess: it would just look like it. For the belief to be following the rules of chess is an essential part of playing chess.

This is quite different from rules such as those governing the behaviour of, say, participants of street traffic, pedestrians and others. There would have been street traffic, even in the absence of such rules and in fact we do have sometimes, in some cities and countries, the impression that there are no rules to govern the traffic, which, however, is most evidently there. But games and sports are by far not the only domain in which to look for examples of CRs. Another one are social rôles and institutions. The author of these words is something that is called «university professor», and this means a rôle within an institution. There are rules governing the behaviour of a professor, such as that for instance he shall teach and do research, but without them, there would be no professors and no bearers of such obligations – no human being as such is obliged in any way or sense to do research or teach students, only those who have assumed the rôles defined, by means of certain rules, as including these obligations, among other things. There are no free-floating professors these days – unlike the Sophists of classical Greece, modern «sages» are parts of social systems called «universities», «academies», «research centres» and such-like. In Poland, home to this writer, there are rather complicated regulations that

4 Amongst those who have denounced that plurality stands out Guastini, with his [68]. 5 See note 26, ch. 1.

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define «university» and (once it has been defined) its functioning. Without them, no university would have been possible, still less professors, as the rules defining the latter presuppose those of the former. This is very dif-ferent from, say, a ringleader emerging more or less spontaneously from a ruleless rioting mob, or a public authority without appeal to any rules by the respective segment of the general public. As of 2013, Marcel Reich-Ranicki continues to be the (German) pope of literature (Literaturpapst), even though there never was a conclave and a habemus papam for him.

Religion, too, is a vast domain from which examples of things consti-tuted by CRs can be drawn – at least from a non-believer’s point of view, but even from a believer’s there is much enough ritual and social rôles (e.g. that of a pope) 6. Legal statuses, too, such as major age, or the legal capac-ity, or heir apparent, are good examples, as is, indeed, though perhaps a little controversially, each and every legal norm; it has been submitted that the famous Kelsenian Basic Norm (Grundnorm) is a CR in that it makes all legal propositions norms in the full and strict – that is, Kelsenian – sense of that word 7. Hart’s «secondary rules» have sometimes, too, been consid-ered constitutive 8.

6 See e.g. [57], 36 (the sacraments of the Catholic Church). 7 First by Carcaterra, [91], 108, then by other autors (see [5], 70-78). Conte at first thought that the Basic Norm was a condition that was at once necessary and sufficient of that which it constituted, viz. a norm system, [7], 81. (The opposition being between norms that are and those that merely set a condition of that which they constitute, see chapters 1 and 4). At that time, Conte called such norms (which are necessary and suf-ficient conditions of what they constitute at the same time) «alethic-constitutive», later he started calling them «noetic-constitutive». (The Basic Norm was classed as «noetic-constitutive» by Conte’s student, Tecla Mazzarese in her talk «Regole su regole» of 1984, [5], 78). Later on, Conte changed opinion and began seeing the Basic Norm as a (in his terminology) eidetic-constitutive rule, i.e. that is merely a necessary condition of what it constitutes, see [5], 76, note 17, or [26], 346, note 7, and 349. Filipponio (and the whole school of Bari) classifies, too, the Basic Norm as an eidetic-constitutive rule, [25], 141. The first occurrence, in Conte, of the idea that the Basic Norm (not under this name, however) is a CR that I could find is in [103], 21 ([104], 157). 8 For instance, by Zaibert and Smith, [105], see [106], 15. There is yet another sense in which Hart can be taken to have spoken of CRs, [34], 270, note 6.

A simple example: children’s game, raising a flag as a greeting

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4.A CLASSIFICATION OF CRS

An interesting question is also the classification of CRs. Are all of them of one stock, or are there any internal boundaries within their realm, any articulations or delimitations deserving philosophical scrutiny 1? At first sight, and going by what Searle has explicitly said, there is not much to dwell on; CRs are just CRs, and that is it. Yet even in Searle there are some not quite uninteresting differences between what could be called «natural» CRs, inherent in the practices they constitute and govern, unconscious to most agents, and «artificial» CRs, laid down by human beings in conscious acts, of which there are credible testimonies – such as rules of games and sports, social statuses, pragmatic statuses such as that of money bestowed upon dead objects, and so on. This dividing line being itself rather natural, there naturally arises the question as to whether the natural origin of some practices and institutions makes them more or less immune to historical change, inasmuch, at least, as such change is caused by factors of which human beings have any degree of conscious control. Has the institution of promise (if it indeed is constituted by any CRs, which is Searle’s position 2) been subject to changes due to the variation of social conditions, fashions or conventions? Searle is explicit about his CRs not being conventional, and he extends this to «artificial» CRs such as those of chess. That the one set of chessmen are black while the other are white is a convention, he says 3, that the bishop must move alongside a diagonal only is a CR. But such rules, precisely because they are man-made, can be changed; this raises the question of the historical identity of a practice governed by rules like that. Conte has spoken only few words on this issue, but they seem

1 They are not of one stock. Conte was probably the first to notice that, see his [7], 82. Cf. «Searle’s ‘constitutive rules’ are not homogeneous», [27], 253. 2 But not mine, see [32]. 3 Or implies, see [6], 39.

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A classification of CRs

to point in one direction: there can be no contradiction between CRs of the familiar sort, if «castling» were defined as allowed when the king is in check, it would be different thing, a different type of move, called the same way as the castling we are familiar with 4. Would then chess be a different game? A position like that would seem quite untenable (whither then all the learnèd books on the history of chess and other games? Should we say they are all about series of different things by pure chance bear-ing the same name?), yet Conte stops short of deciding this issue and the general tenor of his theory seems to suggest that the issue is by and large indifferent to him. To me, it appears plausible to assume that a change in the rules of a practice, if sufficiently small, brings about an accidental, not a substantial change, to put it with Aristotle 5: the practice changes, becomes different, but not another (a different) practice. Yet the answer, if it shall ever be forthcoming, must still be looked for 6.

The pivotal element of the classification propounded by the Contean school (CS in the sequel) is the concept of condition 7. CRs sometimes are, while they at other times set, conditions of that which they are rules of 8. (By a rule’s «being a condition» the CS seem to mean that the very existence of the rule is the condition, as far as I can make out). The CS operate with the two basic sorts of condition: necessary and sufficient. It is conceivable, considering some rather terse statements by Conte, that the distinction between the necessary and sufficient condition made it possible for the CS to widen considerably the scope of CRs beyond those assigned to this category by Searle 9. For these are just those that are necessary con-ditions of what they rule; but there are other CRs, which are, by contrast, sufficient conditions of that which they govern. Remembering that some conditions may be sufficient and necessary at the same time, we arrive, finally, at this sixfold classification 10:

4 For instance [28], 248. 5 Cf. Ph. 190b11. 6 Guglielmo Feis (Milan) and Umberto Sconfienza (London) are working on it, [158]. 7 See [5] for a systematic survey of this theory as based on the concept of condition. 8 Conte at first thought that being a condition of that which they governed was a differentia specifica of all CRs, and meticuously explained why, and in what sense, regula-tive rules are not such conditions ([15], 245-251, these pages are still recommendable to anyone racking their brain over the difference between rules constitutive and regulative). He was referring to eidetic-constitutive rules. 9 But also to exclude some of Searle’s examples, including the famous promise-example ([6], 57-61) from the extension of «constitutive rule» in their sense, see e.g. [26], 354-355, [29], 146. In the latter, Conte says that Searle’s «‘constitutive rule’ of promise», namely «to make a promise is to undertake an obligation» ([29], 145, cf. [17], 56, but see supra, note 62, ch. 3) merely «makes explicit what is implicit in the connotation of ‘prom-ise’», [29], 146, and calls it (abuses it?) for this reason with a hard-to-translate German word «konstitutionsanalytische Regel», ibidem. 10 See for instance [159] or [160]. For a synthetic survey (in Italian) see [76], 34f., [131], 38, [161], 124f.

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1. rules that are conditions; 1.a. necessary: eidetic-constitutive rules 11; 1.b. sufficient: thetic-constitutive rules; 1.c. necessary and sufficient: noetic-constitutive rules 12;2. rules that set conditions; 2.a. necessary: anankastic-constitutive rules; 2.b. sufficient: metathetic-constitutive rules 13; 2.c. necessary and sufficient: nomic-constitutive rules 14.

This sixfold classification is really threefold, as most what the CS have to say on CRs pertains to (1.a), (1.b) 15 and (2.a), and also most examples belong into one of these three. The examples for the remaining three are scarce and open to debate. In what follows, I shall confine myself to com-ments on the three first categories.

What does it mean that a rule is (1) a condition of anything, for instance of a practice, a game, a social status? Given that the eidetic-con-stitutive rules are the first item in this taxonomy (or typology 16), and that most examples of CRs belong to this category, this is somewhat awkward to explain, because one has to make abstraction from the fact that most of such rules are just necessary and not sufficient conditions of what they are rules of. But forgetting this trouble for a moment, it is fair to say that a rule «is» a condition of a practice or status, if its very existence (and valid-ity, but we remember that validity is a concomitant character or the «very existence» of norms) 17 – presupposed it is coherent, intelligibly phrased and precise enough  – calls that practice into being; at least as a human possibility. That which is created – this is perhaps not quite unimportant an observation – corresponds to the content of the rule, its «phrastic», in Hare’s terminology 18; rules that by their very existence create social peace

11 In [7] still called these «nomic-constitutive rules», 85; not to confuse with (2.c) above. 12 Kelsen’s Basic Norm? See [159], 7 and [160], 449. 13 Art. 59 of the Constitution of Italy: «Former Presidents of the Republic are Sena-tors by right and for life unless they renounce the office», [162], Italian: «È senatore di diritto e a vita, salvo rinunzia, chi è stato Presidente della Repubblica», [163]: see [159], 7f. But also most «out of thin air»-type examples given by Searle in his Making the social world, such as that of the California Code law which legislates that a corporation may be formed by simply executing and filing articles of incorporation ([40], 97f.) appear to belong into this category, too. 14 «The legal capacity of a human being begins on the completion of birth», [3], article 1: see [159], 8. Cf. note 5, ch. 1. 15 These two were the first two to be distinguished by Conte, as he himself explains ([7], 82). This opposition seems to be the most important one for Roversi, see his [75], 34f. and [76], 25f. A detailed discussion of Roversi’s interesting and carefully thought-through views I must for lack of space postpone to another volume. 16 The CS seem to prefer this word. 17 See note 50, ch. 3. 18 [164].

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or tension, or hostile attitudes, or angry comments, are not eidetic-consti-tutive: they do «create» things, but not in the required sense of «create». You have designed a board-game, and once you have laid down the rules (with the above provisoes) lo! it is there, ready to be played. The physical tokens that it uses (if any) still have to be provided, but the significance of their rôle varies; in some games they can be mere thought-objects (there is mental chess) 19. But the game’s existence is warranted by the fact that we know, knowing its rules, what we need in order to assign the status of the game’s various tokens and pawns to. A typical rule taken by itself, how-ever, does not yet call anything in existence – which is why it is just a nec-essary, not a sufficient condition (it is an eidetic-constitutive rule, 1.a); it only does so with co-operation with a number of other rules 20, which col-lectively are not just a necessary, but a necessary and sufficient condition of the practice in question.

19 But there is no mental football: the moves in football are physical movements which have to be actually executed and can, as valid moves, be successful or not, which has no parallel in chess. 20 As a matter of fact, there is an even more awkward point here: given that Conte sometimes employs the analogy between eidetic-constitutive rules and axioms of an axiomatic system (rather obliquely and in a non-committal way, see note 39, ch. 4) the question arises if the eidetic-constitutive rules of a kind of activity, status, institution etc. are necessary conditions thereof taken severally or only taken collectively, i.e., seen as embedded in a set of such conditions which collectively are also a sufficient condition of the entity in question. The problem is that axioms of many well-understood axiomatic systems are not really necessary for «implicitly defining» concepts or rather for «deter-mining as to what it in its core is» («wesentlich bestimmt», [19], 527) of the objects from their domain, or as foundations of the systems’ theses. For many (or perhaps all? This metalogical question surpasses my competence) axiomatic systems, there are many equiv-alent or nearly equivalent axiomatisations. Euclid’s axiomatisation of plane geometry is, for instance, very different from Hilbert’s; Tarski and Szmielew’s is even more different from both than either is from the other, as it does not at all employ the concept of a straight line, working with «point», «betweenness» and «congruence» instead ([165]); propositional calculus, to take an even more elementary example, has many alternative axiomatisations too, e.g. the first axiom system by Frege ([166]), or the famous one-axiom system by Nicod ([167]). A relatively well-known, though less elementary, fact is that general topology can receive different axiomatisations, depending on whether the concept of an open set, or rather that a closed set, or interior, or closure, is accepted as primitive. This fact makes it difficult to accept that eidetic-constitutive rules define the «intension» (whatever that exactly be) of the corresponding praxeonymes: mathematical entities are extensional (no matter whether you think of a topological space taking «open set» or «closed set» or etc. you arrive at the same mathematical theory). But perhaps the analogy with axiomatic systems in formal sciences should not be pressed too hard. Perhaps, what is really a necessary condition of a given form of behaviour etc. is not a rule but an equivalence class of rules in which two rules are equivalent if they create the same game. «The bishop moves only diagonally» and «the bishop moves as a rook in two perpendicular moves of an equal number of squares» are two equivalent rules, in this sense. If they were to be taken as co-constitutive of the intension of «bishop» (in chess), we should have two different concepts of a chess bishop. But they need not be so taken.

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5.ON THE VERY IDEA OF A CRSceptical considerations 1

5.1. introDuCtion

If CRs are at all rules, what is a rule 2? Seeing that since the «linguistic turn» it is no longer done to ask what something is (the Aristotelian τί ἐστι 3) unless you are a historian of philosophy, it is at least permissible to ask what «rule» means. And, for aught I can see, it is far from certain that «rule» has achieved the status of a full-fledged term of art in philosophy. There are, to be sure, the Cartesian «regulae ad directionem ingenii», there are the Kantian rules a priori as well as constitutive and regulative princi-ples in the Kantian sense of these expressions 4, there is the Wittgensteinian problem of following a rule – to mention just a few highly philosophical items involving the term «rule». In spite of this, philosophical dictionaries and encyclopaedias are strangely reticent as to what a rule in its (nominal) essence is; or, if there should be no single species «rule» the essence of which could be found and given, what kinds of rules there are or could be. The entries – if there are any entries at all – are more often than not short and concise, as if in keeping with the sense of regula in Roman Law: regula est, quae rem quae est breviter enarrat, or with the explanation for «regula» in Goclenius’ Lexicon Philosophicum of 1613: «brevis rerum praeceptio», for brief they are, indeed. Abbagnano, in his Dizionario di filosofia, reports

1 A former version has appeared as [199] (second edition [200]). 2 One of the very few who have recently asked this question is Robles, [100]. 3 On «good old Aristotelian essentialism» see [201], on a modern guise of the «indecent question» see [202]. 4 CPR A 179f., B 222; A 236, B 296; A 509, B 537; A 516, B 544; A 616ff., B 644ff.; A 620, B 648; A 644, B 672; A 647, B 676; A 664f., B 691; A 666, B 694; A 672, B 701; A 674f., B 702f.; A 680, B 708; A 685f., B 713f.; A 688, B 716; A 693f., B 721f.; A 701f., B 729f. See the whole Appendix to transcendental dialectics or the Anhang zur transzen-dentalen Dialektik – von dem regulativen Gebrauch der Ideen der reinen Vernunft, von der Endabsicht der natürlichen Dialektik der menschlichen Vernunft, A 642-704, B 670-732.

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with a note of noble resignation: «si chiama regola qualsiasi proposizione prescrittiva». Then he adds: «il termine è generalissimo e comprende le nozioni più ristrette di norma, massima e legge». With exactly this excuse the Enciclopedia filosofica refuses to place an entry on «rule» 5. At least the Enciclopedia Einaudi features an extensive entry on «norma» by Norberto Bobbio.

A laudable exception to this – should we say – near-rule is the Histori-sches Wörterbuch der Philosophie, edited by Joachim Ritter and Karlfried Gründer with Professor Conte’s sub-entry on «rule» 6 (Amedeo G. Conte, had he written and published in English, would have been known as the most profound and systematic student of CRs, I venture to say).

As far as CRs are concerned, the situation is all the more lamentable: In a recent publication, the highly authoritative-looking Encyclopaedia of Philosophy published by Routledge edited by Edward Craig, there is no entry on «rules» at all, while «constitutive rules» are briefly, cursorily and perfunctorily mentioned in four entries in the book only. Its predecessor in the Anglo-Saxon world, the Encyclopedia of Philosophy edited by Paul Edwards, sported at least a not-so-brief article on «rule» by the American Wittgenstein-scholar Newton Garver.

Yet, even if «rule» is not, or not yet, a full-fledged technical term, «constitutive rule» is at least well-known in the sense assigned to it by Searle, and there has been some discussion, notably in Italian and Polish literature, on the antecedents of this concept in such writers as Edmund Husserl, Max Weber, Antonino Pagliaro, John D. Mabbott, Ernst Mally, Alf Ross the Dane, Georg Henrik von Wright, John Rawls, and others. One of the most important upshots of these discussions has been that alongside Searle, the Polish philosopher Czesław Znamierowski can be regarded as a discoverer of CRs, which he called «normy konstrukcyjne» («construction rules»), in his book Podstawowe pojęcia teorii prawa 7. The Polish scholar Stanisław Czepita and Professor Lorini (in his book Dimen-sioni giuridiche dell’instituzionale 8) have brought Znamierowski’s achieve-ments in this respect to the fore, though the merit of discovering him for the international context of discussion must, it seems to be, be attributed do Professor Conte. Then, there are similar concepts by Herbert Spiegel-berg («Festsetzung», or «positing»), Gaetano Carcaterra («constitutive norms») and by Professor Conte 9. The latter has the merit of proposing a

5 For references see infra, chapter 7. 6 [160]. 7 [88]. See, too, [89] and [90]. 8 [203]. 9 By Conte see (in chronological sequence): [103] ([104]), [123], [204] ([178]), [205], [206] ([172]), [7], [207] ([15]), [23], [35] ([34]), [111], [23] ([2]), [26], [208], [209], [210] ([30]), [28], [27], [29], [159], [211], [160], [212] ([19]), [194] and … a few others, no completeness here pretended, except that I mentioned in parentheses the most

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sophisticated classification of CRs (see supra, chapter 4). These discussions have been nicely summarised, at least in part, in Professor Di Lucia’s book L’Universale della promessa 10. Still, much work awaits being done.

In this essay, however, I do not intend to achieve a contribution to the history of the problem of CRs, but, rather, to accomplish a modest advancement in the study of the specific properties of CRs. Whether or not there is something like an eidos of CRs has been a matter of debate, and it is my impression that Professor Conte’s line on this is that there is not 11. But if there is not, what is the point, the use and the benefit, one should ask, of having the syntagma «constitutive rule»? Has Plato not instructed us to cut the beast along the joints 12, and is this not valid for terminological cut-tings as well? Let us not press this issue too much; there is something like a more or less fuzzily bounded area of what has traditionally gone under the name of «constitutive rules» in various authors, and that is a fact to be respected, if any progress in the discussion is to be made. My methodical starting point shall be, therefore, the tacit assumption that there is a family (in the Wittgensteinian sense) of things called «constitutive rules», suffi-ciently similar for this phrase not to be a mere label.

recent editions of some papers in [213] and [214]. Some others of Conte’s contributions to the subject I have already mentioned above. 10 [57]. 11 [28], 243: «What is a constitutive rule? This question is false […] because it rests on the false premise that there is a single concept of a constitutive rule». In Polish, such a question is called not «fałszywe» but «nietrafne», the former word being reserved for true bearers of truth-values. 12 Phdr. 265e: τὸ πάλιν κατ’ εἴδη δύνασθαι διατέμνειν κατ’ ἄρθρα ᾗ πέφυκεν.

CRs vs. regulative rules – Is this not a spurious opposition?

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6.ON THE CONSTITUTIVE FORCE OF REGULATIVE RULES 1

In chapter 5 I mentioned, in passing, that however hard or easy the draw-ing of a border-line between constitutive and regulative rules might seem, all action-guiding (in whatever sense) rules do seem to have a constitu-tive power, in the sense that they do constitute various (social) objects even though this is not their primary function. This is similar to the justly celebrated «health(y)» example from Aristotle: there are things that are healthy in various senses (healthy life-style, healthy hair, what not), in their relation to health (a certain privileged state of the organism, which may be called, too, a «healthy state of the organism») 2. Why should things not be somewhat like that in the domain of rules? Without denying that there are, as Ottonelli thinks (see the last section of chapter 6) rules that are con-stitutive per se, and nothing but constitutive, there might be rules which, though they primarily discharge other tasks, yet also constitute – if a term from chess be allowed, en passant. In this chapter I should like to go into this idea in some more detail.

Let’s start off with an example: in a not yet so remote past, it was an unwritten rule of decorum on Polish public transport means to offer one’s seat to an elderly or handicapped person standing in the aisle. Now no longer: you occasionally see whole rows of seats occupied by teenagers or persons in their twenties with sexagenarians or septuagenarians humbly standing in the aisle. Bend over to one of the young sitters and suggest to her the idea of giving up her seat to this lady or that gentleman and you will see eyes resplendent with innocent perplexity and a facial expression,

1 A former version of this chapter has appeared as [232]. 2 Metaph. 1003b. This is called the «pros ti» or «pros hen» relation in Aristotle; it later gave rise to the Scholastic theory of «analogy of attribution», which would have been of very considerable use here. For more on the concept of analogy in Scholasticism a useful reference are the relevant philosophical works by the late Ralph McInerny, from his Logic of analogy onwards.

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not of a defiant «who are you to tell me that?» or «why should I?» but of sheer wonder at the very idea. Apparently, the idea has never crossed the young person’s mind 3 and does not exist to her as a human possibility, a Lebensform, in the Wittgensteinian 4 nor the Thomas-Mannian 5 sense.

But let us begin at the beginning.CRs are, as I have already so many times said, often defined by opposi-

tions to other kinds of rules. Amongst these oppositions that to «regulative rules» (that is, rules that say that someone must, must not, need not, may or may not, do or abstain from this or that) is probably the best-known. Searle has, in part, defined CRs as in so far distinct from the regulative ones as they, as he put it, do not just regulate but also define new forms of behaviour 6. On the face of it, the distinction seems clear-cut. (Except that it is not clear whether the distinction is supposed to be extensional or, much rather, merely intensional 7).

Yet, on reflection one easily realises that regulative rules do, them too, define new forms of behaviour – namely, behaviour compliant with them. For instance: «smoking aboard of this aircraft is prohibited»: clearly, while not smoking as a form of outer behaviour is just not smoking, whatever its motive, taken jointly with its true motive – if, that is, the desire to comply with the norm in question is its true motive  – it is different from, for instance, not smoking for lack of desire to smoke.

The Italian philosopher Gaetano Carcaterra has suggested to speak of a «constitutive force» of a norm (rule) 8, rather than of «constitutive norms» (rules) per se. This is close to the idea that all norms partake of constitutivity to a degree, without jumping to conclusions as to whether some rules are constitutive per se and only constitutive. The border-line between the two kinds of norms may then come out blurred, or in any event not so clear-cut. Or maybe it is clear-cut, but only conceptually (intensionally), not extensionally? Or perhaps the matter is even more complex? This chapter is an investigation into this issue.

I presuppose this premise (which I consider incontrovertible and uncontroversial): motives (true, as distinct from pretended ones, I stress) of a behaviour are part of the behaviour’s identity, that is, if they change,

3 To be fair to Poland’s younger generations, different behaviour is still observable, every now and again … Yet, it is typically persons over forty who vacate seats for those over sixty or the handicapped. 4 On «form of life» in Wittgenstein and in general (including Thomas Mann and the concept’s philological history), see [30], 317f., notes 4-6. 5 [236] and [237]. 6 [6], 33. Actually, Searle says «create or define», as if this were the same. This slop-piness does not remain without consequences, as I shall show later on. 7 Searle himself suggested ([6], 186f.) that in a sense even the Decalogue is a set of CRs. I shall return to this issue later. 8 ([92]). On p. 137 he speaks of a sostanza costitutiva of certain rules in a sense close to being constitutive purely and simply.

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a different behaviour results. A person abstaining from smoking for a while is not «doing the same thing» whether she acts out of respect for the law 9 (in this case, a norm which prohibits smoking at the person’s spatio-temporal location) or whether she simply has no wish to smoke (e.g. as a habitual non-smoker).

As long as only the outward aspect of the behaviour is considered, both actions (actually, omissions) look identical, but this is an illusion. Depending on what the motives are, the behaviour can take different courses and often does. For example, once the «no smoking!» rule has been abrogated, the temporarily non-smoking habitual smoker may well light a cigarette, while the one who has no desire to smoke will not in the least be affected. Also, one who observes rules out of a desire to observe them may have a further «pharisaic» desire, namely, to be seen as one who observes rules, and consequently his behaviour may be ostentatious or pronouncedly conspicuous, whereas a person who has other motives to behave as the rules say he or she should cannot have a desire like that. This is perhaps not frequent with omissions but think of the dignified immobil-ity of one who refuses to cross a street on red at a crossing where most eve-rybody is crossing the street heedless of the lights. Generally, depending of what our motives are, we shall react differently to new stimuli and modify our behaviour in a different way.

It will, perhaps, be responded that from the point of view of whoever lays down regulative rules it makes no difference what motives those who comply with them are guided by. Even if not smoking out of respect for the law is a new form of behaviour, it is, from the point of view of the legislator, equivalent to the old forms, even though not strictly speaking identical with them.

While this is, in a sense, true, it is also true that the legislator is not, and cannot be, quite indifferent to the motives of those whose behaviour she attempts to regulate. If she had been, she would not have cared to lay down any rules, hoping that people will behave the way she wants them to «for whatever motive». Yet, she knows only too well that this won’t work: among «whatever motives» people happen to have there are, alas, great many which push them to behave in an undesirable way, for instance, to smoke on aeroplanes. The legislator knows this, so she provides a motive to behave the way she wishes, namely, the desire to comply with a rule, and this rule is precisely the regulative rule «smoking is not permitted aboard of this aircraft». Saying that the legislator does not aim at provoking a kind of behaviour «out of respect for the law» but a class of behaviours agree-ing in the outward aspect only but done for «whatever motives» is nearly

9 The Kantian «Achtung fürs Gesetz» from the Groundwork for the metaphysics of morals, AA 4, 400. Or out of fear of punishment; in any case, a behaviour done «in func-tion of» the law (see [238]).

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as adequate as saying that a buyer does not really will buying the com-modity she is buying but only wills «acquiring» it (in «whatever way») – as if the purchasing act were performed unbeknownst to her and without her consent. It is true that a buyer is interested primarily in the object or service she is buying but it is also true that the immediate object of her willing is the act of purchase, qua the preferred way of acquiring the good or service.

Yet still, it is, in a sense, true that the new forms of behaviour that regulative rules give rise to are less interesting to those who draw up and enact these rules than are the new forms of behaviour CRs give rise to in the eyes of their respective legislators. For the former, it is only essen-tial that people behave as the rules say they ought to; they are ultimately interested in the «legality», to speak with Kant 10, of behaviour, just like a buyer is ultimately interested in acquiring the object and would welcome being given it for free. For the latter, and also to the «custodians» of CRs (referees, etc.), it is, too, crucial that people should behave in conformity with CRs for the sake of, among other things 11, such conformity. A person who, due to her mimicking talents, or by sheer coincidence, behaves like everybody else during a religious ceremony or a session of a secret organi-sation, without knowing the rules, and without the intention to follow them, will not be considered to be «playing the game» and will be treated with distrust 12.

This is perhaps the most salient respect in which constitute and regu-lative rules differ. Nonetheless, because they give rise to a new form of behaviour in the sense here set out, regulative rules can be said to have a constitutive force.

10 Metaphysics of morals, AA 6, 219. 11 Though, in most cases, not exclusively. 12 This presupposes, obviously, that somebody knows the rules. Which is why (as Guglielmo Feis M.A. of Milan University has brought to my awareness) in occasions where empty rituals are practiced and (next to) no-one remembers the underlying rules, there is a general uneasy feeling and an equally general tendency to treat one another with distrust. The Reader may pick his/her favourite example. This author particularly appreciates various academic rites, degree-awardings and such like. But they do have a point (see note 45, ch. 5), as we have seen, note 76, ch. 5.

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7.ON THE ONTOLOGY AND THE NORMATIVE ASPECT OF CRS 1

7. introDuCtion

After all that has been said, it is time to make a fresh start again. There are, as we now most amply know, things mostly called «constitutive rules» (and sometimes something else) 2. In the words of Amedeo G. Conte, the all-too-little known prominent student of this kind of rules:

A rule is constitutive if it is a prius of that around which it revolves. A clas-sical case: the rules of chess. […] The rules of chess do not revolve around an activity that preexists them and which exists independently of them. On the contrary, it is these rule themselves that render the game thinkable and possible. […] In constitutive rules there is a paradoxical inversion of the relation between the rule and the entity governed by it: it is paradoxical that rules govern that which is their posterius; it is paradoxical that such rules should be both an (eidetic) condition of conceivability and an (alethic) condition of possibility of an activity. 3

CRs precede that which they are rules of, their respective constituta. Conte insists on this quite often, e.g.:

1 A former version of this essay has appeared as [243]. 2 Sometimes, by contrast, the syntagma «constitutive rule» or its analogon in another language is employed to express something else, usually something in a way or another connected with CRs in our sense, see e.g. [242], 135 and thereon [46], 772. 3 «Costitutiva è una regola la quale sia il prius di ciò su cui essa verte. Caso classico: le regole del gioco degli scacchi […]. Le regole degli scacchi non vertono su un’atti-vità che ad esse preesista e che sussista indipendentemente da esse. Al contrario, sono le regole stesse a rendere e pensabile, e possibile il gioco. […] Nelle regole costitutive v’è una paradossale inversione del rapporto tra regola e regolato: è paradossale che delle regole ordinino qualcosa che, logicamente ed ontologicamente, è un posterius di esse; è paradossale che, di un’attività, le regole stesse siano e condizione (eidetica) di pensabilità, e condizione (aletica) di possibilità», [15], 239.

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On the ontology and the normative aspect of CRs

In the eidetic-constitutive rules there is a paradoxical inversion of the rela-tionship between the rule and the ruled. For instance, the rules of chess are necessary condition both of the praxis called chess and of its praxemes (in particular, of the pieces, for example the bishop; of the pragmemes, for example castling; of the game situations, for example check) in the sense that neither the praxis nor its praxemes exist independently of (prior to) the rules. 4

This priority need not be temporal, unless it is believed that «praxeis» (kinds of activity) exist already (as types or other quasi-Platonic entities) as soon as their rules have been thought up and promulgated. Now the concept of a CR is associated in many minds with the name of John R. Searle, but the phenomenon itself was first discovered in the ’twenties of the twentieth century, by Czesław Znamierowski, a Polish philosopher of law and social ontologist 5. Searle did not either invent or pretend to invent it; yet he made it very well-known 6. But while CRs are relatively well-known as a class of phenomena, they are still not so well understood; not even the exact delimitation of this class is uncontroversial, still less the internal articulation of all the various things falling within that class. It is a purpose of this chapter to explain some problems with what might be called the ontological aspect of the constitutivity of CRs. A comprehensive setting out of the problems will be, as is to be hoped, a first step to solving at least some of them.

Searle, whilst making the now classic distinction between constitutive and regulative rules disclaimed originality and in the spirit of what may seem somewhat excessive modesty, claimed to be reintroducing a distinc-tion made by Kant 7, who, however, did not make it. Kant’s was only the distinction of constitutive and regulative principles and the use thereof; «constitutive» and «regulative» being understood in sense quite distinct from Searle’s 8. However, due to Searle’s influence, it has become part of the common notion of a CR that it, whatever else it is, is not a regulative

4 [27], 252. 5 Znamierowski used the Polish expression «norma konstrukcyjna» or «construc-tion norm». Not too much attention should be, in this field, attached to terminologi-cal variation; «constitutive rule» seems, in any case, the most common term of art. On Znamierowski see e.g. [108], [84], [89] and [90]. In Italian, there are two texts by him: [85] and [86]; a valuable source of information on Znamierowski (in Italian) is [203]. 6 In his latest major work, Making the social world, CRs seem to have been, if not totally superceded, then at least seriously eclipsed by «Declarations», no doubt partly as a result of the discussion with Barry Smith on the so-called (by the latter) «free-standing Y terms» (see [239]) and the seeming absurdity of making CRs work on no «input» at all; [40], 11-15, 93-102. (This seeming absurdity could perhaps be successfully dealt with having recourse to the Contean concepts of a thetic-constitutive and metathetic-constitu-tive rule, 1.b and 2.b, respectively, of chapter 4). 7 [17], 55. More to the point, Searle refers back to the distinction between «sum-mary view» and «practice conception» of rules made by Rawls in [83]: [17], 55. 8 For a nearly exhaustive discussion of the problem of CRs in Kant see [82].

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rule. A regulative rule, in Searle’s sense, is roughly one that prescribes, «regulates», tells what someone may, ought to, or must not do 9. In his essay «How to derive ‘ought’ from ‘is’» Searle says:

The distinction I am trying to make was foreshadowed by Kant’s distinc-tion between regulative and constitutive principles, so let us adopt his ter-minology and describe our distinction as a distinction between regulative and constitutive rules. Regulative rules regulate activities whose existence is independent of the rules; constitutive rules constitute (and also regulate) forms of activity whose existence is logically dependent on the rules. 10

At another locus classicus in his Speech acts, Searle explains:

I want to clarify a distinction between two different sorts of rules, which I shall call regulative and constitutive rules. I am fairly confident about the distinction, but do not find it easy to clarify. As a start, we might say that regulative rules regulate antecedently or independently existing forms of behavior; for example, many rules of etiquette regulate interpersonal relationships which exist independently of the rules. But constitutive rules do not merely regulate, they create or define new forms of behavior. The rules of football or chess, for example, do not merely regulate playing foot-ball or chess, but as it were they create the very possibility of playing such games. The activities of playing football or chess are constituted by acting in accordance with (at least a large subset of) the appropriate rules. Regulative rules regulate a pre-existing activity, an activity whose existence is logically independent of the rules. Constitutive rules constitute (and also regulate) an activity the existence of which is logically dependent on the rules. 11

Much has been said on these lines 12; I shall add nothing by way of com-ment or elaboration upon these loci classici; neither shall I dwell on the historical aspect of things; it has been treated separately elsewhere 13, even though a comprehensive history of the research on the problem is still lacking 14. Instead, I shall proceed to the gist of the matter.

A CR is a rule that is constitutive in the sense of «giving rise to», or «creating» that of which it is a rule. So what is a «rule», to begin with? The famous Aristotelian adage «being is said in many ways» 15 seems to be true of rules, too. There is no «canonical» definition of a rule. There is, to be sure, an entry in Isidor’s Etymologies, XIX, 18, 2, viz. «regula dicta quod

9 All of which belongs to the province of «deontic logic», see [240]. The discipline was «invented» by G.H. v. Wright, see [244] and [245]. For a historical sketch see also [246], [247] and [248]. 10 [17], 55. 11 [6], 33f. 12 For instance, in [141]. 13 For instance in [34] or [62]. 14 But see for instance [26], [28] or [68]. A very valuable source on the history is, too, [76]. 15 Metaph. 1003a.

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sit recta, quasi rectula, et inpedimentum non habeat», a «rule is called so because it is straight and has no impediment» but it pertains to building tools and defines, if anything, rather «ruler» (measuring stick) than «rule». In later dictionaries, the corresponding entries (if any) are more often than not short and concise, as if in keeping with the sense of regula in Roman Law: regula est, quae rem quae est breviter enarrat 16, or with the expla-nation for «regula» in Goclenius’ Lexicon Philosophicum of 1613: «brevis rerum praeceptio», for brief they are, indeed. Abbagnano, in his Dizio-nario di filosofia, says that a rule is a name for any and every prescriptive proposition, «si chiama regola qualsiasi proposizione prescrittiva», under the name of «rule» goes any prescriptive proposition 17. Then he adds: «Il termine è generalissimo e comprende le nozioni più ristrette di norma, massima e legge», the term «rule» is most general and includes those more restricted ones like «norm», «maxim» or «law». Probably with this excuse in mind the Enciclopedia filosofica refuses to place an entry on «rule», referring the reader to such entries as «law», «maxim» or «principle» 18. At least the Enciclopedia Einaudi features an extensive entry on «norma» by Norberto Bobbio. In a recent English-language lexicographic publication, the highly authoritative-looking Encyclopaedia of Philosophy published by Routledge and edited by Edward Craig, there is no entry for «rules» at all. Its predecessor in the Anglo-Saxon world, the Encyclopedia of Philosophy edited by Paul Edwards, included, by contrast, a not-so-brief article on «rule» by the American Wittgenstein-scholar Newton Garver. A laudable exception to this – should we say – near-rule is the Historisches Wörter-buch der Philosophie, edited by Joachim Ritter and Karlfried Gründer with Amedeo G. Conte’s sub-entry on «rule» 19. But that sub-entry pertains to CRs only. There is also a remarkable study by Gregorio Robles 20.

In the context of CRs, one point concerning the general notion of a rule deserves, perhaps, particular attention. It is that of the linguistic formulation of a rule. Is it necessary for every rule to have a linguistic for-mulation and articulation? There are «silent» or «tacit» laws, for instance those studied by Rodolfo Sacco (his atti muti 21), so why should there be not silent rules, including CRs? This is a real problem, because, if a CR should «create» something (i.e., bring into being something not previously existing) then it must itself come into existence and/or become accessible at a certain point of time, in a way in which, for instance, natural law (as traditionally conceived) has not, being coeval with human race and having

16 D. L 17, 1. 17 [249], 718. 18 [250], 1922. 19 [160]. 20 [100]. 21 See [126]. See [251], 26f.

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always been known (however vaguely) to human beings 22. And being accessible in a linguistic form is a preferred form of being accessible for such entities as rules. However, for the moment, let us assume that rules are, if not always actually formulated in a language, then at least suscepti-ble of a formulation in a language. The truly philosophical quest for that which a thing really is, the Aristotelian τί ἐστι, is here best suspended in favour of a tentative and hypothetical identification of a rule with its lin-guistic formulation; no claim is made to the effect that rules simply «are» their linguistic formulations, but only, that they are conveniently managed under the guise of such formulations, if and whenever such are available.

Students of CRs have often insisted on a double distinction delimiting their object from other rules. One part of the distinction is that already mentioned one between constitutive and «regulative» or prescriptive rules 23. The other part is the distinction between constitutive and descrip-tive rules. Descriptive rules state what happens or is the case «as a rule», «on a regular basis», «most often» or «always». «As a rule, nights in the desert are chilly». They range from naive empirical generalisations to sci-entific laws, such as «platinum boils at 4100 grades Kelvin» 24. That which a descriptive rule describes exists already, in one form or another; and that which a prescriptive or regulative rule regulates exists already too, other-wise the prescribing would be pointless.

22 But similarly, it was St. Augustine’s view that the Commandments had been «engraved on people’s hearts» (in De spiritu et littera, chapters 15f.; PL 44, cols. 215f.; Enarratio in Bibliam, chapter 57, nr. 1; PL 36, cols. 673ff.; cf. also Irenaeus, Contra Haere-ses, 1, IV, chapter 13; PG 7, cols. 1006ff.; Tertullian, Adversos Judaeos, chapter 2; PL 2, col. 600; a similar strand of thought is to be found in the Jewish tradition, as well). 23 In his [103] ([104], 157), one of the very first of his texts in which he (without reference to predecessors) speaks of «constitutive rules», Amedeo G. Conte says that the «validity criterium of regulative rules is not itself a regulative rule (a rule worded in terms of Sollen), it is a constitutive rule (a rule in terms of Sein)» (italics in the original). I take this to imply that a rule, if it is constitutive, by the very same token cannot be regulative. Also, on a different plane, there are what Amedeo G. Conte calls «deontic constitutive rules», i.e. those which have the form of a prescriptive proposition, for instance, «the bishop (in chess) ought to move diagonally». See for instance [207], 243, or [194], 55. Conte mentions this concept in virtually all of his numerous publications on CRs. As Conte notes with Aristoteles, however, «that which ought to be done» (τὸ δέον) is said in numerous senses no less than «being» (τὸ ὄν): [195], 104. For Searle’s project of deriving «ought» from «is» it is absolutely crucial that at least certain CRs (such as those consti-tuting the institution of promise, for instance), should not be also regulative; see [76] for that (in [75], which is an earlier version of [76], 88f.). Searle’s formulations such as «constitutive rules constitute (and also regulate)» ([17], 55) are careless, at best. 24 Abstraction is made here from all contrary-to-fact undertones and explanatory functions of scientific laws, see for instance [252] for that.

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8.CRS AS VARIABLE EXPRESSIONS OF HUMAN NATURE

In chapter 6 I have said that systems of regulative rules contain constitu-tive elements, which, however, are different from «focal cases» 1 of CRs inasmuch as those constituted elements are articulations of basic traits and needs of human nature.

Now seeing that this may have sounded as an antiquated Aristotelian essentialism 2, against which adages like «human beings have no nature, only history» would be quoted, some words of explanation are in order.

I did not mean anything philosophically as high-flown as a full-blown essentialism. I meant, rather, quite simple things, such as that, e.g., «[o]ne of the most important facts about life is that human beings cannot get on without food, clothing and shelter» 3 – few will, I hope, assert that even that can be «surmounted» (überwunden), surpassed or suppressed with a due amount of (duly hard) history (Communist regimes of the twenti-eth century did try it, with not much success). Our Constitutions, Civil, Criminal and Trade Codes regulate our access to food, clothing or shelter, sometimes better, sometimes worse, and in doing that, they also constitute certain forms of social interaction meant to facilitate that access. These forms do attract much attention of the public, yet not in themselves and for their own sake, but with regard to what they are supposed to help to regulate, namely, human beings’ access to food etc. What is then at issue is

1 [258], 169. 2 See e.g. [263] for a new study on Aristotle’s «essences». However, considerations taking the concept of «human nature» seriously need not be Aristotelian in any «anti-quated» or antiquarian sense. See [264] on how to not misuse the concept understood in an evolutionary perspective in moral matters; Dyson argues, on the other hand, that Smeed interpreted his own law (in Dyson’s formulation: «The number of deaths in a country per year […] equals .0003 times the two-thirds power of the number of people times the one-third power of the number of cars» as reflecting human nature, [265]). 3 [266], 213.

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whether they be just, efficient, compatible with the regulative idea (in the Kantian sense) of «sustainable growth» and the like – not whether they be beautiful, or exciting, or enjoyable …

On perhaps an even more basic level, human beings have the desire to move from one spatial location to another. A baby does this in her nurs-ery room as soon as she can crawl; a grown-up person will have a further desire to leave the confinements of the tent, hut or house and go out into the world 4, if only for a short walk – typically, of course, she will want to go much farther. As Pascal has once noted, we cannot stay in our room all the time 5. Every now and again we wish to get from A to B. But the way from A to B is sometimes not quite free from problems, such as slippery surface or other travellers who, animated by a similar wish, cross their pathways with ours. Hence all the various rules, which, regulating our behaviour on our way from A to B, make getting from here to there easier, safer, smoother, if not always at the same time quicker. The journeys from A to B, after the relevant rules have been invented, enacted and enforced, will start being rather different from what they used to be before, yet they will, in a certain sense, stay «essentially» the same thing, only done in a dif-ferent way, precisely because they will remain just ways of doing of what we had had a deep-seated need of doing before the invention of the rules, the rules playing only a subsidiary rôle. The forms of behaviour consti-tuted by these rules will not, typically, «count as» worth pursuing for their own sake 6. There is, it is true, the institute of «work-to-rule» or «Italian strike» 7, but it is not exactly «for the sake of conformity with the rules», as the purpose of this type of behaviour is quite different. Besides, in «work-to-rule» the conformity to the rules is rather pretended than real, because the rules are interpreted in such a way as to effectively frustrate the activ-ity they are meant to govern. But suppose someone should be driving up and down the streets of a town with the sole intention of conforming to the road code. In one case, the person seeming to indulge in this kind of behaviour (driving up and down the streets of a small German town) got fined for «pointless driving» (unnützes Fahren) 8. For driving must have a point, viz. reaching a place where one gets out of one’s vehicle and

4 Cf. «The collar» by G. Herbert, [267]. 5 «Tout le malheur des hommes vient d’une seule chose, qui est de ne savoir pas demeurer au repos, dans une chambre» (Pensées, II 139, the Brunschvicg edition, [268]). 6 This is, perhaps, a modification of the proposal by Kasher (see note 139, ch. 3) to consider a rule or a system of rules constitutive or regulative not absolutely but in relation to a kind of activity the rules (are assumed to) govern: it matters whether the activity is pursued for its own sake or with a view to a further end. 7 In Italy, this is called «sciopero bianco» or «white strike». 8 [269]. Useless driving about, or «to and fro» (hin- und herfahren) is prohibited by the German Road Code (Straßenverkehrs-Ordnung), § 30 (1). There are controversies whether this regulation does not contradict article 2 of the German Basic Law ([66]).

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starts doing something else. «Just driving around», even though in perfect conformity with the relevant Road Code, is an idiocy worth punishing (or so it will have seemed to some one), perhaps because it pollutes the envi-ronment and makes the road traffic (if only marginally) more difficult for other drivers.

But do we not have a similarly basic, insupressible need to indulge in games, sports, forms of life (such as that of an Italian Renaissance cour-tier) and the like? After all, Friedrich Schiller 9, Johan Huizinga 10 and Peter Gray 11 do certainly have a point. Certainly. However, the essential difference between such systems of rules and systems of regulative rules, such as Constitutions 12 or Road Codes is that the goals pursued by acting upon the latter – but not the former – lie outside of their purview, con-ceptually, pragmatically and first of all bouletically, i.e. with respect to the relevant acts of the will (the relevant desires). In the case of a Road Code the matter is plain: we wish to get from A to B quickly and «in one piece»; whether this be in compliance with some code or not is at best of secondary importance. In the case of a Constitution this is perhaps less clear, the issue being much more complex, but what we ultimately wish (a basic need of the human nature) and for the sake of which we settle for a polity or another, is to live a good life (τὸ εὖ ζῆν 13), and having lived it, to die «satiated with life» 14 – whether this should be possible in a monar-chy or a republic, on the Northern or the Southern hemisphere, under a free-market or a socialist economic regime is, again, not a primary concern after all.

By contrast, engaging in games and the like we do not just want to win, because there is no generic winning-in-a-game as such, as little as there is a generic animal as such that is neither a capybara, nor a gibbon nor an eagle. «I wanted to get to the theatre, first by bus and then I decided to take a cab» makes perfect sense, whereas «I desired to win, first in chess, then in draughts 15 and finally I settled for winning in elephant polo» is a

9 [270], esp. letters 11-14. First published as Über die ästhetische Erziehung des Menschen in 1795. «Instinct of play» (Spieltrieb) in letter 14 onwards. 10 [230]. 11 [271]. 12 Constitutions are, as I have noted earlier (see note 26, ch. 6), constitutive systems of (constitutive and regulative) rules with respect to polities they constitute, but to us, who in most cases get the rôles of citizens of these polities thrust upon us, constitutions must appear as regulative systems of rules. 13 EN 1095a, 1998b. 14 Ge. 25:8. In Hebrew «ָׂש ֵ ֑ב ַע » (śâbêaʕ), «satisfied, sated», Strong’s number: H7649. Why Max Weber thought this was no longer possible in his time: [272] and [273], 225. (Is it in ours?). This could, as an essential trait of human nature, appear much less believable than the point with food etc. above, simply because it is loftily worded. But then, it is perhaps too self-evident to have a more pedestrian wording. 15 Checkers.

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joke 16. For, while the concept of winning-in-any-game is, though abstract, otherwise easy, it is psychologically nearly impossible to bouletically detach the winning one is really yearning for from the rules of the game in which it is to take place. (So detached, it would rather be like «fancing animals in general», not just cats, dogs, horses or budgies but also hyenas, lice and orkas). The exposition of the goal one is pursuing in engaging in an activ-ity like that will, then, necessarily involve and presuppose a mention of the rules, these latter, unlike «by bus» or «by cab» (in getting to places), not being a Wittgensteinian ladder to be thrown away or exchange-able «means» to be disposed of after work. The Ottonellian «catena giu stificativa» 17, which breaks down when CRs are left out, is forward-looking (directed to goals), too. This is so in part because rôles defined by CRs are very selective in that which they presuppose in their bearers – they are «ontologically meagre» with respect to the former, and «ontologically opulent» with respect to what they ascribe to them – as I have explained in chapter 5, section 5 (towards the end). It has been doubted, it is true, if, on the other hand, «winning» is at all included among the CRs of a game, but this seems to rest on a too restrictive concept of a CR 18; for chess, in any case, it is 19. (More difficult is the question, raised by Dolores Miller 20, if giving someone moral certainty, as accomplished by means of promising, is as inextricably bound up with the institution of promise as is winning-in-chess with chess – perhaps there is such a thing as «giving another person a moral certainty that something will be done» for which promising is just an exchangeable instrument, as good as any other? – and therefore if the Searlean «essential rule» is at all a good example of a CR 21).

CRs do, then, also articulate various basic needs and traits of human nature; but they do it in a different fashion than regulative rules: they specify these needs and traits and give (usually diverse) forms to them. Establishing a type of personal connection with a view to engagement and marriage is one of the most basic human needs, and the capacity for doing so is an equally basic trait of human nature. But there is no «brute» (in Searle’s sense 22) courtship or wooing; there are, instead, various highly elaborate codes, systems of CRs defining a specific form of courtship, i.e. of satisfying that need and actualising that capacity 23.

16 There might be such cases, as there are cases when some one, like Herostratus, yearns for fame in whatever, be it poetry, sports, offshore banking, or setting temples on fire. 17 See note 88, ch. 5. 18 See [98] and [99]. 19 See note 57, ch. 7. 20 [153]. 21 See notes 44, ch. 5 and 50, ch. 7. 22 See note 47, ch. 7. 23 See e.g. [49], 570.

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