Our aim is to provide an account of constitutive rules in terms of (1) the acceptance of regulative norms, and (2) a cognitive process we call “symbolization” (in an altogether different sense from what J. R. Searle means by this word). We claim, first, that institutional facts à la Searle boil down to facts concerning the collective acceptance of regulative norms in a given community. This, however, does not exhaust what institutional facts are. There is a residue, symbolization. Symbolization, as (...) we understand it, involves a transfer of cognitive models from one domain to another. We introduce this notion by exploring different sorts of games, taking our cue from games of pretend play. In the context of this exploration, we introduce the idea of the significance—a matter of degree—of symbolization for a given institutional concept. In particular, we claim, symbolization may play, vis‐à‐vis a given institutional concept, a properly constitutive or a merely auxiliary role. We further argue that, in most legal concepts as conceived in our legal culture, symbolization plays a merely auxiliary role. A possible exception is the concept of political representation, at least on some understandings of it. (shrink)

According to Kelsen, law is a sense content and law has authority. The combination of these two claims appears puzzling. How is it possible for a sense content to have authority? Kelsen's notion of `basic norm' seems to provide an answer to this question. Such an answer, however, simply leads to a new formulation of the question itself. How is a basic norm possible? Kelsen's multiple and tentative answers to this question turn out to be untenable. A different starting point (...) might be provided by Kelsen's notion of `social power'. On closer scrutiny, however, an empowerment account of Kelsen's concept of the authority of law proves unsatisfactory. Thus, our review of some candidate models for a Kelsenian explication of the authority of law shows that none of them is a viable hypothesis. Kelsen's concept of the authority of law is, at bottom, unintelligible. (shrink)

According to Kelsen, law is a sensecontent and law has authority. The combination ofthese two claims appears puzzling. How is it possiblefor a sense content to have authority? Kelsen's notionof `basic norm' seems to provide an answer to thisquestion. Such an answer, however, simply leads to anew formulation of the question itself. How is a basicnorm possible? Kelsen's multiple and tentative answersto this question turn out to be untenable. A differentstarting point might be provided by Kelsen's notion of`social power'. On (...) closer scrutiny, however, anempowerment account of Kelsen's concept of theauthority of law proves unsatisfactory. Thus, ourreview of some candidate models for a Kelsenianexplication of the authority of law shows that none ofthem is a viable hypothesis. Kelsen's concept of theauthority of law is, at bottom, unintelligible. (shrink)

In this paper I argue that there exist conventions of a peculiar sort which are neither norms nor regularities of behaviour, partaking of both. I proceed as follows. After a brief analysis of the meaning of ‘convention’, I give some examples of the kind of phenomena I have in mind: bodily skills, know-how, taste and style, habitus, “disciplines”. Then I group some arguments supporting my claim: considerations about the identity conditions of precedents and about the projectibility of predicates in inductive (...) inference generally ; thoughts about rule-following ; an examination of some of J. R. Searle’s ideas about the “Background” of intentionality. I conclude with some remarks about the time-honoured antithesis ‘nature’ v. ‘convention’.  The Italian original of this text was published in: Ragion Pratica 2: 605–632. (shrink)

J. R. Searle’s general theory of social and institutional reality, as deployed in some of his recent work (The Construction of Social Reality, 1995; Social Ontology and the Philosophy of Society, 1998}, raises many deep and interesting problems. Four issues are taken up here: (1) Searle’s claim to the effect that collective intentionality is a primitive, irreducible form of intentionality; (2) his account of one of the most puzzling features of institutional concepts, their having a self-referential component; (3) the question (...) as to the point, or points, of having institutions; (4) Searle's claim to the effect that false beliefs on the part of the members of the relevant community are compatible with the existence of related institutional facts. It is argued that, under all four respects, Searle's theory proves to be hardly satisfactory. (shrink)