J V E D I T E D B Y E E R I K L A G E R S P E T Z , H E I K K I & J U S S I K O T KAVI R T A ON THE N ATUR E O F S O C IA L A N D I N S T I T U T I O N A L B § f m l s l'1' S o P h i f 4739

ON THE NATURE OF SOCIAL AND INSTITUTION AL REALITY E er ik L a g e r s p e t z , H e ikk i I k ä h e im o a n d Jussi K o tk a v i r ta (editors) SoPhi University of Jyväskylä 2001 Sohii 57 University of Jyväskylä SoPhi publishes social Sciences at the University of Jyväskylä, Finland, and it is located at the Departm ent of Social Sciences and Philosophy. It provides a forum for innovative Studies in social policy, sociology, social w ork, political science and philosophy. SoPhi publishes 10-15 titles per year, both in Finnish and in English. M anuscripts are selected for publication on the basis of expert opinion. Correspondence should be sent to SoPhi, Dept. of Social Sciences and Philosophy, University of Jyväskylä, PO. Box 35 (MaB), F1N-40014Jyväskylä, Finland. SoPhi is distributed w orld-w ide by Drake International Services, Market House, Market Place, D eddington, Oxford 0X 15 OSE, UK, tel. (+44) 01869 338240, fax (+44) 01869 338310, e-mail: info@ drakeint.co.uk, website: www.drakeint .co.uk. In North America SoPhi is d istributed by International Specialized Book Services, 5804 NE Hassalo Street, Portland, OR 97213-3644, USA, tel. 503 287 3093 or 800944 6190 (toll free), fax 503 280 8832, e-mail: info@ isbs.com, website: www.isbs.com. Visit SoPhi hom e page at http://www.iyu.li/sophi ISBN 951 -39-09704-X ISSN 1238-8025 Copyright © contributors and SoPhi 2001 Printed at Kopijyvä ltd.,Jyväskylä 2003 Cover printed at ER-Paino, Laukaa 200 1 CONTENTS On the nature of social and institulional reality 4 Editors' introduction Social ontology and the philosophy of Society 15 John R. Searle Social rules as plural subject phenom ena 39 Margaret Gilbert On the existence of institutions 70 Eerik Lagerspetz Collective acceptance and social reality 102 Raim o Tuomela O n the limits of construction and individualism in social ontology 136 Michael Q uan te On normativity in legal context 165 M aria Cristina Redondo Confronting two constructivists 193 Paolo C om anducci Democracy and theory of institutions 21 5 O ta Weinberger ON THE NATURE OF SOCIAL AND INSTUTIONAL REALITY Editors' introduction ne important consequence of ihe emergence of m odern natural science was that lor the first time a clear line was drawn between the natural and the artificial , or man-made, parts of the World. In the Aristotelian world-view the tamily, the law, the p o l i s , and language were natural entities; in the modern world-view they were seen as instituted, as products of intentional human action. The 17th century theorists often used the contract terminology to mark the difference, as did Rousseau and Kant in the next century The thinkers of the Scottish Enlightment, Hume, Smith, Ferguson, and in Germany especially Hegel, replaced the idea of an explicit contract with the notion oi a conventional arrangement arising as an unintended consequence of separate hut interrelated sequences oi human actions. Human institutions were seen as products ot human action but not oi human design. The modern notion of "the social" had entered the stage. lt is a fact that the ontology of the social has yet to establish itsell as a well-delined and recognized subject of research. We can easily see this il we compare social ontology with, say, the ontology of mathematical objects . Issues related to the ontology of the social have emerged in different contexts. The participants of the 4 O n t h e n a t u r e o f s o c i a l a n d i n s t i t u t i o n a l r e a l it y disputes have usually been only dimly aware oi the fact that the same or similar issues have been taken up elsewhere , in other disciplines and philosophical traditions. During the past century, we can recognize at least four separate contexts in which the issues related to the na- ture of social reality have been focused upon. First, the nature oi the social has been one of the Cen- tral topics of theoretical sociology since D urkheim and his "scandalous" postulation of social lacts aschoses. Ontological issues have appeared vvearing a num ber of disguises : as questions about w hether social collectives can be reduced to individuals, w hether the proper way to proceed in the social Sciences is to explain collective phenom ena in terms ot individual properties or vice versa, or about the question of what the relationship betw een s tructural causal forces and individual agency is. Second, in legal theory the ontology oi institutions and institutionally defined entities, properties and relations has been one of the main theoretical problems, particularly in the Continental positivist and Scand- inavian realist traditions. In the analytical tradition, these issues have recently been discussed and reformulated by Ota Weinberger and Neil MacCormick. While in the sociological disputes the main focus has been on the explanation, the discussions in legal theory have been penetrated by the problem of the allegedly normative nature of lavv. Third, in phenomenology, the constitu tion oi the intersubjective World is a problem that has been the subject of m uch discussion an d is exemplified by the w ork of Alfred Schulz. More recently, this problem has been reformulated in various versions oi social constructivism , often drawing iheir inspiration from the writings of Peter L. Berger and Thomas Luckmann - two of Schutz's students. The work of Jurgen Habermas also draws from these phenomenological sources. The recent developm ent in linguistically oriented 5 E d it o r s ' in t r o d u c t i o n analytic philosophy has initiated a fourth fruitful discussion on the nature of "the social". Due to the Inde- pendent bu t parallel w orks of such philosophers as Philip Pettit (1993), David Bloor (1997), Margaret Gil- bert (1989) and Jo h n Searle (1995), the ontology of the social World has established itself as a partly independen t b ranch oi philosophy. While clearly related to the earlier discussions, social ontology or, using John Searles terminology in this volume, "the philosophy of Society" is not just a reflection of the methodological d isputes w ith in the Special Sciences. As the philosophy of language, or political philosophy have their own identity , which is not reducible to the m ethodologies of empirical linguistics or positive political science, social ontology could he seen as a separate discipline. The following questions can be posed in the context of this discussion: "How do things like money, rnarriage , property or governm ent exist?" "How are they related to individual h u m a n actions, propositional attitudes , or physical things?" "H ow are they created and maintained?" "Are they inherently normative?" "Are they to be explained in terrns of rules?" "W hat is the nature oi social rules?" "What is the nature of collective ac- tions?" "How are they constitu ted by the actions perlormed by the participating individuals?" "Can collectives like groups or institutions have intentions in the proper sense oi the word?" Hence there are several types oi questions posed in social ontology. As we have seen, there is no single means of discussing these issues, but, rather, many separate and partly linked directions ot discussion. Such a situation is com m on in the history ot h u m an thought. Nevertheless , it is unsatisfactory. W hen arranging an inter- national meeting on the nature of social and institutional reality in the sum m er of 1999, the aim of both the Departm ent of Social Sciences and Philosophy at the University of Jyväskylä and its partners was to open 6 O n t h e n a t u r e o f s o c i a l a n d i n s t i t u t i o n a l r e a l i t y a possibility for Communication betvveen the different traditions of social ontology. Several well-known philosophers , legal theorists, and methodologists of social science were invited. Almost ali were able to attend, and almost ali oi those who did attend contributed to this volume. According to our personal judgment, the meeting was a success. Hovvever, the final judgment, oi course, belongs to the reader. The natural starting point of our discussion was the recent work o [Joh n R. Searle. As one of the leading specialists in the philosophy of language and the philosophy of mind, Professor Searle (Berkeley) has set the agenda for a branch of philosophy more than once. No one doing serious work in the philosophy oi language could ignore his work. As we mentioned, several recent works in social philosophy are either parallel to or complementary of his The C ons truc t ion oi Social Reality . Nevertheless , in his book, the basic issues of social ontology have found such a clear, accessible and challenging lormulation that it is bound to acquire the status of a classic . Therefore, we found it suitable to begin this collection with an essay written by Searle. In it he provides a concise explanation oi the main theses oi his book. Our two Finnish contributors have developed views which are in many senses parallel, yet clearly distinguishable , from the theory practiced by Searle. (On their agreements and disagreetnents with Searle, see Tuomela 1999, Lagerspetz 1999.) The contribution of R a im o T u o m e la (Helsinki) is part of a project he has developed over the past twenty years in several books and in innumerable articles. Combining the traditional Finnish interest in action theory with rigorous analysis, Tuomela has attempted to develop a theory ot collective actions and attitudes that would serve as a basis for a general science of human action. E erik L a g e r s p e t z (Jyväskylä) re-states soine Central theses already formulated in his dissertation (1989) and his book T h e O p p o s i te M irrors . 7 E d ITORS' 1NTRODUCTION An E ssa y o n the C o n v e n t io n a l i s t T h e o r y o f I n s t i tu t io n s (1995). His key concept is the notion of conventional laet, derived and modified from David Lewis' classic C o n v e n t io n (1969). In his essay, Lagerspetz also tries to link the recent discussions of social ontology with the earlier debates m entioned above. M a r g a r e t G i lb e r t s (Connecticut) seminal O n Socia l Faets (1989) first appeared some years before Searles book. Again, there are interesting similarities and dissimilarities between her approach and those of our other contributors. Similarly to Lagerspetz, she is interested in the existence conditions of social rules, but her no- tion of a "joint com m itm ent" may have more in com - mon with Searle's "w e-intentions" than with Lagerspetz' "conventional facts" based on "mutual beliefs''. Tuomelas careful classification seems to make some room for ali these phenom ena as different forms oi "collective acceptance ". Ali four authors seem to he widely in agreement that (a) social entities and properties are sui generis , not reducible to mental and/or physical entities an d properties, (b) their existence conditions should be partly analysed m terms oi rules, and (c) their existence is also related to beliels and/or com m itm ents prevailing in relevant social groups. Searle's account has, oi course, been the subject oi a certain am ount ot criticism. In this collection, M ichae l Q u a n te (Mtinster) formulates some critical points. In his essay he discusses the naturalistic and individualistic nature oi Searles project. As Quante remarks, naturalism and individualism are conceptually separate positions. Of the contributors of this volume, both Searle and Tuomela have naturalist aspirations, while Lagerspetz and Gilbert could be classified as anti-naturalists. "Individu- alism" has several meanings. Lagerspetzs and Tuomelas accounts are, at least in some sense ot the term, indi- vidualistic, while Searles "we-intentions" and Gilbert's "joint commitments" seem to have an irreducibly non8 O n t h e n a t u r e o f s o c i a l a n d i n s t i t u t i o n a l r e a l it y individualistic com ponent. The essence of Q uantes criticism seems to he that ali constructivist accounts are nevertheless bound to make uneasy com prom ises w ith a basically individualistic world-view, and this tends to make them ultimately incoherent or unstable. Individualists attem pt to ask the question: H ow do individuals and their interactions constitute social reality? They tend, however, to forget the com plem entary question: How does social reality constitute individuals? A nother im portant issue discussed in Q uantes article is the ethical aspect of the constructivist account oi so- cial reality. At least two issues are relevant in this context . First, our position on individualism-collectivism axis may have some ethical consequences. Although our support of methodological or ontological theory does not com m it us to an ethical view vvithout additional premises -fo rex am p le , a methodological individualist (say, Hobbes or Pareto) is not autom atically a supporter of moral individualism some views certainly fit together better than others. A view about the ethical status of social collectives (say, of nations) is naturally com bined w ith a view about their ontological status. Second, there is the question oi the norm ativity vs. non-norm ativity of social facts. Ali (our authors (Searle, Gilbert, Tuomela, and Lagerspetz) agree that statem ents such as "X is money in C" are true only il people involved in the context C som ehow accept that X is money. Moral, or, more broadly, norm ative and evaluative, statem ents do not belong to this type. Most importantly, while the fact that X is accepted as m oney in C is, for us, a reason to accept X as money (as a m eans of exchange), the laet that Y is accepted as a moral reason or standard in C does not seem to constitute a reason to share this acceptance. The fact that eating meat is generally perm itted in our Society is not an argum ent against vegetarianism or, at least, if we accept it as an argum ent, we have to lace ali the problem s related to normative 9 EDITORS' INTRODUCTION relativism. But if we, while rejecting moral constructivism or conventionalism, nevertheless accept a constructivist account of social ontology, we have to develop some other theory of the normative aspects of social reality. Interestingly , Searle, in his account on the is-ought question in his earlier works, seems to argue for the irreducible nor- mative character of institutional facts. The problem of normativity is relevant in law as well as in ethics. As we noted, some important questions of social ontology have also been discussed in legal theory. Our collection reflects this fact. Of the philosophers, both Gilbert and Lagerspetz refer extensively to the works of legal theorists. Conversely, the two contributors hailing from the tield of legal science, Paolo C om anducci and M aria C ristina Rcdondo, are interested in Searle's account. VVhile seeing the Iruitfulness of his approach, and while drawing interesting parallels between Searles work and the earlier work done in legal theory, both are troubled by the problem peculiar to their own field, law. In his essay, Paolo Comanducci (Genova) compares Searle's project with that ot Hans Kelsen, perhaps the most influential oi ali 20th century legal theorists. His somevvhat sceptical conclusion is that the projects have a lot in common, including many oi their problems. Law is often considered as inherently normative, yet it is undeniably a part oi our social and institutional reality. Unless we accept a strong version oi natural law theory, we have to admit that one necessary condition oi something being a valid legal rule is that it is accepted as a valid legal rule and treated as one in the relevant jurisdiction. Here we can see a clear connection between social constructivism and 20th century legal positivism (Kelsen, Ross, and Hart), which views legal lacts essentially as social facts. Never- theless, laws are normative in the sense that they are not m erely dem ands backed by a physical th rea t. As Lagerspetz remarks, the laet that something is a legal rule may be dependent on the existence oi another rule, but 1 0 O n t h e n a t u r e o f s o c i a l a n d i n s t i t u t i o n a l r e a l i t y this regress cannot go on ad in f in i tu m . Legal postivists hait the regress by presupposing an ultimate rule or rules (Kelsens G r u n d n o n n , Harts "rules of recognitiön"), which are supposed to give other mies their normative torce. How can social ontology account for normativity? Modern legal positivism, unlike its Benthamite and Austinian predecessors, does not try to reduce normativity to "habits of obedience". But can legal normativity be reduced to something else, e.g. to beliefs about normativity? M a r ia C r is t in a R cd on do (Genova) tries explicitly to apply the Searlian analysis to legal institutions. Indeed, she sees it as the only coherent foundation for a positivist theory of legal normativity. But she also raises sonre interesting questions about the epistemological status of sentences like "X is a valid legal ru le". Generally, a constructivist account of Searles work is committed to a certatn form of monistic realism. Although the con- structivist account does not accept the standard realist dogma that external reality is completely independent trom our beliefs about that reality, the truth of sentences like "X is a valid rule" can be analysed in terms of correspondence betvveen a linguistic entity and a laet. But the truth ot such sentences is olten controversial: there need be no unanimously shared belief (even among legal experts ) as to vvhether X actually is a valid rule. If its truth is a m atter oi controversy, and if the existence of the corresponding laet is dependent on the existence of shared belief in its truth, should we say that the sentence in question is untrue, or that it has no truth value? Redondo also reminds us that there exists a competing realist ac- count oi legal normativity namely the view which presupposes an independent moral reality and sees legal normativity as a part of moral normativity. In the lield of legal theory, Professor O ta W e in b e r g e r (Graz) is certainly one of the most im portant and most productive theorists of the ontology oi norms. In his A n In s t i tu t ion a l T h e o ry o f Law (1986), vvritten jointly with E d ITORS' INTRODUCTION Neil MacCormick (whose lecture is unfortunately not included in the present volume), he applies the nolion of institution, w hich is partly derived from Seaiies earlier work. However, his con tribu tion to this volume has a directly normative character. He critically discusses certain theories oi democracy, especially the discursive theory pui forth by Jurgen H aberm as in his celebrated Faktizität und Geltung (1992). W einberger's critical essay illustrates the com plex relationship between social ontology and substantive ethical judgments. In democratic theories, expressions like "the general will" or "the will oi the people" abound. In the writings ot Rousseau or of the Anglo-ldealists, they are assigned a clearly holistic meaning. For this reason, bo th moral and methodological individualists tend to view them with suspicion . They may agree w ith W H. Auden: "We cannot postulate a General Will / For w hat we are, we have ourselves to b lam e". In W einbergers view, ostensibly holistic taik about the will of the people should he analysed in terms oi institutional processes. In saying that the will oi the people is X, we rnay, for example, mean that in the relevant community, or some procedure (say, the majority rule) is generally accepted as hinding, and, by using this procedure, we have p roduced the prescription X. In Gilberts terms, the people become a plural subject. OI course, not any procedure will do. Only some procedures can plausibly be interpreted as the democratic means oi wi 11 formation. H aberm as w ou ld in ali likelihood agree with Weinberger on this issue, as both theorists share a proceduralistic conception of dem ocracy Hovvever, W einberger's com plaint is against the role of consensus in H aberm as' theory. O n one hand, the theory is too demanding: there is no assurance in real life that political discourses could approxim ate the ideal consensus. W hat it produces is som ething like a reasonable com prom ise backed by a sullicient majority Thus, a theory that makes consen1 2 O n t h e n a t u r e o f s o c i a l a n d i n s t i t u t i o n a l r e a l i t y s i i s or general acceptability a necessary condition of legitimacy is simply unrealistic. On the o ther hand, a consensus is never, not even in ideal conditions, a sufficient guarantee of tru th or moral validity unless it is m ade as tautologically sufficient by defining the ideal conditions so that they imply tru th or moral validity It may be possible to start from institutional premises similar to those used by Weinberger and to end up with a m ore positive judgm ent. But certainly VVeinberger is correct in insisting that a philosophical theory of democracy should be based on the analysis of concrete institutions, and that there is no reason to suppose a quasi-automatic harm ony between dem ocracy and individual rights. As the organizers oi the Jyväskylä m eeting and the editors oi this volume, we w ant to express o u r gratitude to ali w ho have helped us in our vvork. VVe want to thank our partners, Tampere Institute of Social Research; the Department oi Philosophy, and the Faculty of Law at the University oi Turku; The Academy of Finland; The Otto Brusiin Foundation; and the Faculty of Social Sciences at the University of Jyväskylä, for their financial support. VVe would also like to thank the representatives oi these institutions as individuals, particularly Professors Aulis Aarnio, Juhan i Pietarinen, Hannu Tolonen, and Kauko W ickström , for their active cooperation ; Ms. Sinikka Hakala for her superb organisational work; and the num erous s tudents and the members oi the Department of Social Sciences and Philoso- phy for their help, attentive interest, and participation. 1 3 E d ITORS' INTRODUCTION Literature Bloor, D. (1997): W ittg en ste in , R ulcs a n d In s titu tio n s . London, Routledge. Gilbert, M. (1989): O n Social Facts. Princeton, Princeton UP Lagerspetz, E. (1989): A C o n v e n tio n a lis t T h e o ry o j In s tu tio n s. Helsinki, Acta Philosophica Fennica. Lagerspetz, E. (1995): The O pposite M irrors. A n E ssay on the C o n - vcn tiona lis t T heory oj Institu tions. Dordrecht, Klrnver Academic Publishers. Lagerspetz, E. (1999): 'John Searles Social Ontology: A Com- ment . A n a ly s e & K ritik 21., 231-236. Lewis, D. (1969): C o n ven tion . Cambridge (Mass.), Harvard UP Pettit, P (1993):The C om m o n M ind . A n E ssay on Psychology, S o c i- ety, a n d Politics. Oxlord, Oxlord UP S earleJ. (1974): Speech A cts . Cambridge, Cambtidge UP Searle, J. (1995): T he C onstruc tion o f Socia l R ea lity . London, Allen Lane, The Penguin Press. Tuomela, R. (1995): The Im p o rta n c e o f Us: A P h ilosophical S tu d y o f Basic Socia l N o tio n s . Stanford, Stanford UP Tuomela, R (1999): 'Searle, Collective Intentionality, and Social Institutions' Proceedings of the Symposium "Speech Acts, Mind, and Social Reality", Bielefeld. 1 4 S o c i a l o n t o l o g y a n d t h e p h i l o s o p h y o f So c i e t y I. Some puzzling features of social reality N ow w ith ali tha t by way of in t ro d u c t io n , here is m y p rob lem . If you look at o u r social life it is a r em arkab le fact tha t the re is a class o f en t i t ie s th a t have a ve ty im p o r ta n t role in o u r lives, b u t they on ly are w h a t they are, because we believe tha t tha t is w h a t they are. I will take an obv ious eco n o m ic exam ple : I carry a r o u n d in m y wallet these so rd id bits of paper. A n d they are really no t very im p o r ta n t as physical ob jects , b u t they m a tte r to us. They are exam ples of 'm o n e y '. N ow here is m y puzzle: It is only money, because w e believe tha t it is money, a n d yet it is an objective fact tha t it is money. T hat is, w h e n I go in to a store a n d I give them on e of these, they d o n 't say: "Weil, m aybe y o u th in k it's m o - ney, b u t w h y sh o u ld we care w h a t y o u th in k ? ". They accep t it as money. So, here is the initial lo rm u la t io n oi my puzzle: H ow can there be an im p o r ta n t an d objective class of entit ies tha t only exist because w e th in k they exist? 1 believe that w h en you start a ph ilo soph ica l investigat ion you have to start naively an d I am just go ing naively to teli you som e ot the p u z z l in g features a b o u t social an d institutional reality Aiter h a v in g g o n e th rough a stage of naivete we m ust b ecom e im m ense ly soph is t i- ca te d in g iving answ ers lo ou t puzzles. I have never lo u n d the a lgo ri thm for d ec id ing w h e n you have to s top b e in g d u m b and naive and w h e n you start being sm art a n d soph is t ica ted . We shall just play it by ear as we go along. Anyway, here goes w ith hali a do ze n puzz l ing leatures oi social reality. P roblem n u m b e r one is tha t the re is a k ind of selfre fe ren t ia l i ty in social c o n c e p t s . S o m e th in g is o n ly m o n e y if w e believe it is money, a n d it is on ly property, m arriage, g o v e rn m e n t , a cockta il party, tenu re , a s u m - m er vacat ion , if that s w ha t we believe it is. But now, if 17 J o h n R. S earle money is partly defined as that w hich is believed to be money, then ph ilosophers are going to get worried. If it has to be believed to be m oney in order to be money, what is the content of the belief? lt looks like you are going to have circularity or infmite regress, because il part of the ontology of money is believed to be money, then part of the definition of 'm oney' is believed to be money, and consequently the beliel that som ething is money, has to be in part the beliel, that it s believed to be money. And that means, you are in trouble, because then the content of that beliel is that it is believed to be believed to be money, and so on. So thats the puzzle: how do we avoid circularity or infinite regress in the definition oi 'm oney' il the concept has this self referential com ponent? And what goes for money, also goes tor property, marriage, government, and ali sorts oi other social and institutional phenom ena . Now that leads to a second question, and that is, what is the role oi language in the constitu tion of social and institutional reality? It looks as if in the case oi these institutional p h en o m en a language d o e sn 't just describe a pre-existing reality, b u t is partly constitutive of the reality that it describes. lt looks like the vocabulary of m oney and governm ent and property and mar- riage and football games and cocktail parties is partly constitutive oi the phenom ena. Otherwise, how do we account tor the differences between animals that are incapable of language and consequently incapable oi this sort of institutional ontology, and language-using animals like ourselves, where the words, in some sense we need to explain, seem to be partly constitutive of the social and institutional reality? Let me naii that down with an example. My dog Ludwig is very intelligent, but there are limits to his intelligence. Suppose 1 give him a pile ot dollar bills and 1 train h im to bring me a dollar bill whenever he wants to be led. Ali the same, he is not buying anything, an d it s not really m oney to 1 8 S o c i a l o n t o l o g y a n d t h e p h i l o s o p h y o f So c i e t y hiin. His b r ing ing me the m o n e y is n o t an e c o n o m ic transac t ion . W h y not? Let me naii d ow n the p rob lem abou t self-referentiality a little m o re closely as well. I said, i ts o n ly money, p rop- erty, m arr iage , g o v e rn m e n t etc. if we th in k that tha t is w h a t it is. This actually has im p o r ta n t consequences . S uppose , we dec ide we are go ing to give a cockta il par ty a n d we invite the w ho le p o p u la t io n ot W ilm ersdo rf , a n d w e have a hell of a great cocktail party. But su p p o se th in g s get ou t of h a n d a n d the casualty rate is w orse th a n the battle of G ettysburg . Ali the sam e, its no t a war. its no t a war, unless peop le th in k its a war. As long as they th in k its a cocktail party, th e n its a cocktail party, i ts ju s t a hell of a cocktail party. This fea ture of se lf-referentiality is ac tually of som e historical im por- tance. I have ahvays w o n d e re d , h o w c o u ld C ortez w ith 150 o r so b ew ild e red S pan ia rds bea t the entire Aztec arm y? N ot to m e n t io n Toltec, Mixtec, A ra n h u ac an d o th e r assem bled tribes. Weil, part ot the an sw e r is, they had a different def in i t ion of w h a t they w ere doing. You see, the Aztecs w ere fighting a w ar ac co rd in g to the ir defin ition . That m eans you get close e n o u g h to an enem y so th a t you can h o ld hi m w i th o u t b ru is ing h im a n d l a t e r o n y o u sa c r i l ic e h im to th e G re a t G o d Q u e tzacoa t l by c u t t in g ou t his living hear t w ith an obsid ian knife on the to p oi a py ram id . Weil, tha t m ay he a great defin ition ot w arfare for Central A m erican tribes; bu t it is very ineffective against E u ropeans on horses w ith m etal w eapons . So the sorts of p h e n o m e n a I'm ta lk ing a b o u t actually have historical conseq u e n ces . It isn't ju s t tha t we are dea ling w ith ph ilo soph ica l puz- zles. So far I have covered two sources of pu zz le m en t . The cons t i tu t ive role of language a n d self-referentiality, A th i rd re la ted source oi p u z z le m e n t lor me (and th is has a Special in te rest to me) is the Special role of perfo rm a- tives in the creation oi social an d in s t i tu tional reality. 19 J o h n R. Searle For a very large number of institu tional facts you can create the (act just by saying you are creating it, provided you have the appropriate authority in the appropriate situation and the context is correct. So, you can adjourn the meeting by saying " I adjourn the meeting" . You can declare war by saying "We declare war" . You can pronounce somebody husband and wife by saying "1 pronounce you husband and w ife" , and so 011 w ith a large number of cases. Now why is that? How can you create institutional reality just by saying you are creat- ing it? You cannot do it w ith everything. You cannot score a goal in football by saying AI score a goal" , or even "We hereby score a goal". So what is the difference ? YVhat is going on here? Weil, I w ill give you a couple of more of these puzzles and then we wi 11 start to try to solve them. Another puzzling feature of social reality is the complex mterrelations among the elements. They seem to be systematic . So you don't just have money, but in order to have money you have to have a system oi exchange, ovvnership , payment, debts and in general you have to have a system oi rights and obligations. It m ight seem that games are an exception because games are self-enclosed in a way that money and property and marriage are not. But even in the game you understand the position of a batter and the position of a pitcher only in terms ot understanding the notions oi rights and obligations. And that already involves you in more general social and institutional notions. So 1 am struck by the pervasive interlocking character of the kinds oi social and insti- tutional phenomena that 111 be talking about. There is one last puzzle 1 w ill mention. We could go on ali night iisting puzzles, but let's settie for live. The lilth puzzle that interests me is: though there exists a real institutional reality oi elections, wars, property exchanges , stock markets and so on, nonetheless you can't have an institutional reality w ithout an underlying brute 2 0 S o c i a l o n t o l o g y a n d t h e p h i l o s o p h y o f s o c i e t y physical reality. Here is an interesting fact. Money can lake a very large num ber of forms. It can be in the form of gold or silver or paper or copper, it can be in the form of credit cards, and some primitive tribes use w am pum or sea shells. By the way, rnost of your m oney underw ent a dramatic physical change in the past 10 or 20 years that you d id n 't even notice. It happened in the mielelle oi the night. Most of your money is now representeel by magnetic traces on com pu te r discs in banks, and it cloesn't make a bit of difference: You d id n 't lose any sleep at ali over this, though there was a revolutionary change in the physical representation of your money. Now, here is the point. Almost anything can be m oney bu t at some point it has to have some physical reality. There has to be som ething w hether it be gold or magnetic traces that counts or could count as money. YVhy is that? W hy is the physical necessary and why is there a primacy of the brute physical fact over the institutional fact? II. Conceptual tools necessary to account for social reality Now we have a problem. Lets go to work to solve it. In order to solve it, 1 vvant to make another distinction tha t 1 have been p re su p p o s in g and that 1 th in k is absolutely essential for understanding our position in the world. There are classes of objective facts in the World w h ich have to be d is t in g u ish e d f rom ce r ta in o th e r objective facts in the lollowing regard. M any th ings tha t we th in k of as real nonethe less only exist relative to observers , in the fo rm of reality tha t they have. We need to d is t in - gu ish those features of the World tha t we m ig h t call 'o b se rv e r in d e p e n d e n t ' from those features tha t are ob2 1 J o h n R. S earle server dependent. Observer independen t features are those that, so to speak, d o n t give a dam n about hum an observers, and here 1 am th ink ing ot things like m ountains and molecules and galaxies and processes like photosynthesis and mitosis and meiosis. Ali oi those phenom ena are observer-independent . But in addition to them, there are lots oi o ther phenom ena in the World whose exislence depends on being treated or regarded in a certain way by h u m a n agents. Observer dependen t phenom ena w ould include such things as chairs and tables and glasses and m oney and property and marriage . So, we need a general distinction between those phenom ena that are observer-independent and those \vhose existence is observer-relative. Typically an observer-relative entity will have both sorts of features. So this object, w hich I carry a round in my pocket, has a certain weight and that it has the weight that it has is observer-independent. It doesiVt depend on me or anyone else, it depends on the gravitational reiätlons between the object and the center of the earth. But this object is also a Swiss arm y knife and the fea- ture of being a Swiss army knife is observer-relative. So we need a general distinction between those p h e n o m - ena that are observer-independent and those that are observer-relative. Typically the natural Sciences deal with phenom ena that are observer-independent, phenom ena like m o u n ta in sa n d molecules and tectonic plates. Typi- cally the social Sciences such as economics, sociology, and political science, deal with phenom ena that are observer-relative. And here 1 am th inking of such things as political parties, elections, social classes and money. The question for this evening we can now state a little bit more precisely: we are discussing the ontology oi a certain class oi observer-relative social and institutional reality. For the analysis oi this social reality 1 need exactly three devices, three tools to try to analyze that ontology. 2 2 S o c i a l o n t o l o g y a n d t h e p h i l o s o p h y o f So c i e t y Here is the first one. VVe need to call a t ten t io n to the class of en t it ies to w h ich we have ass igned functions. Many of the tnost c o m m o n co n c ep ts tha t we use in dealing w ith the w orld , for ex am ple co n c e p ts Itke "ca rs" an d "b a t h tu b s " a n d "tables" an d "ch a i r s" a n d "h o u se s", involve the a s s ignm en t of function . It is a rem arkab le capacity th a t h u m a n s an d ce r ta in an im als have, tha t they can assign functions to objects , w h e re the ob ject does no t have tha t function in d e p e n d e n t ly of the as - s ignm ent. A nd I w an t to m ake a s t rong c la im a h o u t this a s s ig n m e n t of function . I w a n t to say: Ali functions are observer-rela tive . It is only relative to agen ts , on ly relative to obse rve rs that so m e th in g can be said to have a certain function . We are b l in d e d to this fact by the prac tice in bio logy oi ta lk ing a b o u t lunc t ions in te rch an g eab ly vvith ta lk ing ab o u t causa tion . But there is a sub tle difference. We do indeed d iscover such facts as the fact tha t the func tion oi the h ea r t is to p u m p b lood . VVe d o indeed discover, that the fu n c t io n oi the ves t ibu la r o cu la r reflex is to stabilize the retinal image. But we d iscover those fu n c - tions on ly against the b a c k g ro u n d p re s u p p o s i t io n of certa in no rm s . VVe have to a s sum e tha t life a n d survival have a value, an d it is against the p re su p p o s i t io n of the no rm , aga ins t the a s su m p tio n tha t life an d survival a n d r ep ro d u c t io n are valuable , tha t we can say such th ings as that the func t ion of the hear t is to p u m p b lood . If we though t th a t life an d survival w ere w orth less , tha t the only th in g tha t really m a tte red was d e a th a n d ex tinc- tion, then h ea r ts w o u ld he d ysfunc t iona l , an d cance r w ou ld have a uselul function , it w o u ld has ten extinc- tion. VVe d o n 't th in k these th ings a n d it is crucial to ou t ass ignm en ts of func tion that we d o n 't. But it is on ly a g a in s t th e b a c k g r o u n d oi th e p r e s u p p o s i t i o n o f normativity, tha t we can d iscover su c h facts as the fact that the func tion of the hear t is to p u m p blood. One w ay to pu t this po in t is to ask: w h a t is the differ23 J o h n R . S e a r l e ence b e tw e e n saying tha t the hea r t causes the p u m p in g of b lo o d , o n the one h a n d , a n d say ing tha t the function of the hear t is to p u m p b lood , on the other. A n d it seems to m e the re is a cruc ia l d is t in c t io n , b ecause once you i n t r o d u c e th e n o t i o n o f f u n c t i o n y o u i n t r o d u c e normativ ity . O nce you in t ro d u c e the n o t io n of fu n c - tion , y o u ca n taik a b o u t such th in g s as h ea r t disease, m a lfu n c t io n in g hearts , h ea r ts tha t func tion b e t te r th a n o th e r hear ts . N otice , w e d o n 't ta ik a b o u t b e t te r and w orse Stones, un less w e assign a fu n c t io n to the stone. lf yo u th in k this s tone will m a k e a g o o d pro jec tile , then you can evaluate it. You ca n say th is one is b e t te r than that one. O r if y o u assign it an es the t ic fu n c t io n you can say th is s tone is an o lje t d 'art trouve, a n d w ith such an ass ig n m e n t of fu n c t io n , y o u m ay th in k the s tone has so m e artistic value. So th a t 's the first po in t , we assign fu n c t io n s a n d ali fu nc t ions are Observer relative. The s e co n d n o t io n 1 neecl is tha t of coflective intentionality. Ali g en u in e ly social b e h a v io r co n ta in s collective in tentiona lity o n the par t of the pa r t ic ipan ts . You c a n see the ce n tra l i ty o f collec tive in te n t io n a l i ty it y o u c o n t ra s t g e n u in e c o o p e ra t iv e b e h a v io r f ro m b e h a v io r w h ic h m ere ly h a p p e n s to be co -o rd in a ted w ith o th e r behavior. S u p p o se for exam ple tha t we are p lay ing in a S ym phony orches tra . S uppose I a m p lay ing the violin p a r t a n d you are s ing ing the s o p ra n o part, a n d to g e th e r w e are pa r t oi the p e r fo rm an ce oi B eethovens 9 th S ym phony. We have to be able to m a k e the d is t in c t io n betvveen me saw ing aw ay on the v iolin a n d you in d e p e n d e n t ly bu t by c h a n c e s im u l ta n e o u s ly s in g in g "F re u d e , s c h ö n e r G ö t te r lu n k e n ", a n d us d o in g th is in ten t io n a l ly toge ther in concer t . So a basic on to log ica l laet a b o u t social a n d collective b eh a v io r seem s to be collective o r sh a re d in - ten t iona l i ty in the fo rm of collective beliefs, des ires an d in ten t ions . But in m y in te l lectual t rad i t io n th e existence ot collective in ten t iona l i ty crea tes a real p ro b lem . lf ali the in ten tiona li ty 1 have, is in m y h ead , a n d ali the 24 S o c i a l o n t o l o g y a n d t h e p h i l o s o p h y o f So c i e t y in te n t io n a l i ty you have is in y o u r h ead , h o w can there b e su c h a th in g as collective in ten tiona li ty? T here are a lo t of in g e n io u s efforts to try to solve th is p rob lem in ph ilosophy . Basically they try to do it by r e d u c in g co l- lective in ten tiona li ty to ind iv idual o r s ingu lar in te n t io n - al i ty T hey try to reduce w ein te n d , we-believe etc. to Iin te n d p lus I-believe tha t yo u have su c h a n d su c h an in te n t io n . A nd then on y o u r par t it is 1in tend p lu s 1believe th a t you have su c h a n d such an in ten tion . O n th e v iew th a t I am o p p o s e d to, the a s s u m p t io n is, Wem te n t io n a l i ty m us t reduce to 1-intentionality. C ollec- tive in ten t iona l i ty m us t red u c e to ind iv idual in te n t io n - ality. Othervvise you w o u ld have v io la ted the "p r inc ip le of m ethodo log ica l in d iv id u a l i sm ". If y o u say tha t c o l - lective in ten t iona l i ty is p r im itive , then it seem s you are in very b a d com pany. It seem s tha t you are pos tu la t ing so m e k in d of Hegelian W eltgeist tha t is f loating a ro u n d o ve rh e ad , or so m e th in g lilce that. W h e re 1 live you d o n 't w a n t to be c a u g h t d o in g tha t , o the rw ise y o u '11 lose a lot of friends. G iven tha t puzz le h o w can there be co l lec- tive in tentionality , w h e n ali in ten tiona li ty is ind iv idual? it looks like we have to red u c e collective in te n t io n a l- ity to ind iv idua l in tentionality . An e n o r tn o u s a m o u n t o f in te l lec tual e f f o rt has been sp e n t , in my view w asted , t ry in g to d o that. The analysis tha t co m es o u t involves s o m e th in g called "m u tua l belief". For exam ple , co n s id e r a case w h ere we are p u s h in g a ca r to g e th e r to try to get it s tarted . N ow tha t is a case of collective intentionality. So h o w is th a t su p p o s e d to be ana lyzed? The idea is this. W h e n we are p u sh in g the ca r toge ther , th e n 1 in te n d to p u sh the car a n d yo u int e n d to p u sh the car. A nd I believe th a t y ou believe tha t 1 in te n d , a n d 1 believe that you believe tha t 1 believe th a t you believe that I in te n d a n d so on u p in an infin ite hierarchy. A nd for you it is the sam e. I ts "1 believe th a t you be l ieve ," etc. on up. N o w 1 th in k m y p o o r bra in will 25 Jo h n R. Searle not carry thai many beliefs and 1 want to suggest there is a very simple way out of this puzzle. The puzzle is, assuming that ali intentionality is in the heads of ind ividual human and animal agents, how can it be the case that it s ali in our individua l brains, if it is irreducibly collective? And the answer is, that we can have intentionality in your brain and my brain, which is in the form oi the lirst person plural as much as we can have it in the form oi the first person singular. On my view there is a triv ia l notational solution to the puzzle. The irreducible form of the intentionality in my head, when we are doing something collectively is, 'we intend'. And 1 don't have to reduce that to an '1 intend' and a set of mutual beliefs. On the contrary, 1 have the '1-intends' that 1 do have, precisely because I have an irreducible we-intend. To naii that down to cases, I am indeed playing the v io lin and you are singing the soprano part, but 1 am only doing what 1 am doing and you are doing what you are doing, because we together are collectively playing the chorale movement of Beethoven s 9th Symphony. 1 hope everybody sees that point. As 1 said, the problem 1 am discussing has a traditional name. lt 's called "the problem oi methodological individualism " . And the assumption has always been: either you reduce collective intentionality to the lirst person singular, to '1 intend', or else you have to postulate a collective World spirit and ali sorts oi other perfectly dreadful metaphysical excrescences. But 1 reject the assumption that in order to have ali my intentional- ity in my head, it must be expressible in the first person singular torm. 1 have a great deal oi intentionality, which is in the lirst person plural. Nothing comes w ithout a price and we do pay a price for the solution that I am proposing to this puzzle. The price is this. It turns out that 1 can be mistaken, not only in what is happening in the World, but 1 can be 2 6 S o c i a l o n t o l o g y a n d t h e p h i l o s o p h y o f s o c i e t y mistaken about the very mental State that I have. That violates the Cartesian assum ption that we cannot he mistaken about ou t intentions. But I th ink that is the right way to think of it. Suppose in the case vvhere we are pushing the car 1 discover that you w eren't in fact pushing? You were just going along for a ride, l was doing ali the pushing. Weil, then I was not only mis- taken in one of my beliefs, bu t it tu rns out that in a way 1 also was mistaken about what I was doing. I thought l was pushing as part oi our pushing and in fact thats not w hat was happening. I was doing ali the pushing, you were just pretending. So that is a price that we have to pay. You can be mistaken about the nature oi the activity you are engaged in, if you have an assum p- tion about the collective intentionality, which is not shared by your apparent cooperators. But that seems to be the situation we are in real life. The third tool is this. Years ago, w hen 1 first started working on speech acts 1 made a distinction between brute facts and institutional facts. Those lacts that 1 said were 'institutional lacts' presuppose a hu m an institu- tion for their existence, for example such lacts as that som ebody is checkm ated in chess, or som ebody is elected President oi the United States. 1 wanted to distinguish those lacts, which are called institutional (acts, from 'brute facts' whose existence does not require a hum an institution, the fact, for example, that the earth is 93 million miles away from the sun. You need an institution in order to state or describe that brute laet; you need the institution of language and the institution of measurement in mileage, e.g. French and kilometers, to describe it that way and you could state the same brute fact using different institutions. But the point l'm m aking is, the fact of distance betw een the earth and the sun does not depend on a hum an institution, though of course you have to have institutions in order to d e - scribe or state the fact. Now here is the point. There is 27 J o h n R . S earle a class of lacts that are insiitutional facts and another class of facts thai are 'brute facts', because they cfo not require hum an institutions. And then, the question is, how are institutional facts possible? 1 also made the claim that you need a distinction between two kinds of rules. One sort of rule regulates antecedently existing forms of behavior. A nother sort of rule doesiTt ju s t regulate antecedently existing forms of behavior, but creates the possibility of new forms of behavior. 1 call the difference between these two sorts of rules using a Kantian terminology here - 'regulative ' rules, that regulate antecedently existing forms of behavior, and 'constitu tive' rules that constitute new forms of behavior. Examples are obvious: The rule "drive on the right hand side oi the road" doesn 't create the possibility of driving. Driving can exist w ithout that rule. That is a rule to regulate the already existing activity of driving. But the rules of chess are no t like that. It w asn 't the case that there were a loi oi people pushing bits of wood a round on boards and som ebody said: "Look fellows, we have to gel some rules so we d o n 't keep bashing into each other. You slay on the right with your knight and 1 go on the left w ith my bishop!" Rather the rules oi chess are constitutive in the sense that they create the possibility of the activity in question. Playing chess is constituted by acting in accordance with at least a certain large subset of the rules of chess. Novv here is the bo ttom line of this discussion. Those rules have a typical form. The form is 'X counts as Y' or 'X counts as Y in context C'. That is, such and such a move counts as a 'legal kn ight-m ove'. Such and such a position counts as "you being in check'. Such and such a position counts as 'checkm ate', and checkmate counts as 'w inn ing ' or lo s in g the game. And w hat goes for chess goes for m uch more elaborate institutions: such and such noises coun t as 'making a prom ise', such and such m arks on the paper count as 'voting' in an elec2 8 S o c i a l o n t o l o g y a n d t h e p h i l o s o p h y o f So c i e t y tion , such and such num ber votes counts as 'vvinning' an election, and so on with a large n u m b er of institutional structures. III. Status functions We now have three tools to solve our problems. These are, first, the assignment o( lunction, second, collective intentionality, and, third, constitutive rules, rules of the form 'X counts as Y\ W ith ali this apparatus assembled, lets go to vvork. I will now try to put it ali together. I w ant you to imagine a simple com m unity of (lets call them ) hominids, beasts more or less like ourselves. Now it s very easy to imagine that such organism s, such primates can assign functions to objects. 11 s easy to imagine that they use a stick to dig with, or they use a s tum p to sit on. They can assign a function of being a digging tool or a stool to sit on. But novv it s not a big step to imagine that they do that collectively. That collectively they have a very big stick that they use as a lever, or they have a big log that they use as a bench to sit on collectively. So its very easy to tie collective intentionality to the assignment oi function. But novv 1 want you to imagine the next step: Imagine to take an example our group oi hominids live in a series oi huts, and they build a wall arounci the huts. Imagine that they build a wall to keep intruders out and to keep their own members in. And novv this is a case oi the collective assignment oi lunction, vvhere the func- tion is performed in virtue of the physics of the ohjeet on vvhich the lunction is assigned. We just assume the vvall is too big to climb over easily. But novv imagine that the vvall gradually decays to the point, vvhere it is no longer able to keep the members ot the com m unity in, in virtue of its physical structure, nor to keep intruders out in virtue of its physical structure. But novv lets suppose that, 2 9 J o h n R . S earle out of habit or whatever, the people involved continue to recognize the wall as a boundary i.e. they continue to acknowledge or accept that you are not supposed to cross the boundary. It is important to notice the vocabulary we use of 'acknowledge', 'accept', and 'recognize'. That is we imagine that the wall continues to servre its function, but no longer in virtue of its physical structure . It serves its function in virtue oi the fact that it has a certain recognized status. Now I wanted that to sound innocent, bu t 1 think that the move I just described is the basic move by which we create institutional reality of a specifically hum an sort. W hat happened vvas this. We imagine that an entity is used to perform a function, but it cannot perform the function in virtue of its physical structure. It can only perform the function in virtue of the collective recognition or acceptance oi the entity in question as having that function. And 1 want to say that is the underly ing idea behind 'X counts as Y\ This line of Stones, which is ali that is left of the wall, now counts as a boundary. It now has a deontic status, it now has a form of power, which it exercises not in virtue of its physical structure, but in virtue of the assignment of function. And I want to introduce a name for this sort of func- tion lets call these "status functions". A status func- tion is a function that an entity performs not in virtue of its physical structure alone, bu t in virtue oi the collective imposition or recognition of the entity in ques- tion as having a certain status, and with that status a function. And the structure of that logically speaking is the collective im position of a function of the form 'this entity X counts as having this status and therefore this function as Y in this context C '. Now, Tm making a s trong claim: this little device is the foundation stone of ali institutional reality. So lets go to w ork and explain that claim 3 0 S o c i a l o n t o l o g y a n d t h e p h i l o s o p h y o f So c i e t y I w an t to extend this account to the case of money. And just to naii it down to historical examples I want to taik briefly about the evolution of paper currency in Medieval Europe. (1 love the Middle Ages, because it is, in a sense, the childhood of our civilization. In M edi- eval Europe, you see institutional forms that are growing an d decaying, and the development of paper money is a very good example.) Initially people carried around gold and Silver coins and the use of gold and Silver was a form of barter. It was a form of barter, because the value of the coin was exactly equal to the value of the gold or silver contained in the coin, and the valuable coin was exchanged for other things. Now if you look in the text books they teli us, there are three kinds of m oney There is 'com m odity m oney', there is 'contract m oney' and there is l ia t m oney'. But w hat they d o n 't teli you is, w hat's the relation between them? The initial case we are talking about, where people actually had gold and silver, is a case of com m odity money. Bar- ter in gold and silver is both dangerous and inefficient, so people lound they could leave the gold and silver with a group of people who w orked on benches, and they were called "bankers", and the bankers would give them bits of paper on which it was said "we will pay the bearer of this note a piece of gold on d em an d ". With the introduction of the bits of paper we have now moved from commodity money to contract money, because the hit of paper is a contract to pay in gold or silver on demand. Later some genius discovered that you can actually increase the supply of money in circulation if you are out more bits of paper than you actually have gold in the bank. And as long as not everybody runs to the bank at once, it works. The bits of paper are still as good as gold. Much later on some genius discovered - and it took a long tirne to make this discovery: you can forget about the gold, and just have the paper. And that's the situation we are in now. We moved from commodity 31 J o h n R . S earle money, which is barter, to contract money, to f iät money. If you look at these bits ot paper that I was waving around earlier, they seem to me good examples ot the form 'X counts as Y', that is such and such bits oi paper count as "currency". As it says on the piece oi paper that hm hold- ing here, "This note is legal tender for ali debts public and private". It counts as money in the United States. But that it counts as money, is a matter oi collective acceptance of the status function in accordance with the structure: 'Such and such counts as so and so\ These bits of paper count as legal currency in the United States, just as some other bits of paper count as legal currency in an other country. Novv notice, that once you have got that structure 'X counts as Y', then automatically certain torms oi abuse become possible. Il I go in my basem ent and produce a lot oi things that look like these bits of paper, I will be p roduc ing counterfeit money. Thus m oney isn't just anything that looks like this but it has to be issued by the Bureau oi Engraving and Printing un d er the authority oi the Treasury. So one form oi abuse is counterfeiting . The structure automatically m akes it possible to have abuses, because you can present som eth ing as satisfying the X term even il it d o esn 't in fact, and thats counterleit. Another form oi abuse is if you get too many oi the entities in question. Then you have inllation and in hyper-inflation the entities are no longer able to func- tion as money. And what goes for money, goes for o ther lorms oi social institutions. You can have counterleit lavvyers and counterfeit doctors, that is, people w ho d o n 't actually satisfy the conditions, bu t w ho masquerade as lawyers and doctors. 1 d o n 't know how elsewhere, but in the State of Calitornia we novv have so many lavvyers that there is a k ind of inllation. Novv here is a puzzling question. II 1 am correct in describing the logical structure of status functions, il it is just a matter of im posing a status and vvith it a lunc3 2 S o c i a l o n t o l o g y a n d t h e p h i l o s o p h y o f So c i e t y tion, then how can the system be so powerful? How can these structures have such an enorm ous effect on our lives, when, as 1 have described it, il ali seems so fragile? There are two parts to the ansvver to that. One is this: the structure can be iterated indefinitely Let me give an example. 1 tnake noises th rough my m outh, I just emit this acoustic blast. But these count as sentences oi English. And in a certain context making noises of that sort, uttering those sentences of English, counts as making a promise. Making that kind oi promise in that k ind oi context counts as m aking a contract. Notice how we are going up in the hierarchy. The X-term at one level will have been the Y-term at an earlier level and you keep going with it. Making that sort of co n - tract, counts as getting married. And in the State of Calilornia once you get m arried , ali k inds of things happen. You are entitled spousal benefits, income tax deductions, ali sorts oi rights concerning property, taxes, and so on. So you get an indefinite iteration. The seconcl point is that you get interlocking s truc- tures. I d o n 't just have money, but I have money in my bank account at the Bank of America, which is put there by my employer, the State of Calilornia and which 1 use to pay my debts to the Pacific Gas and Electric C om - pany as well as my federal, State and local taxes. Now, just about every word I uttered in that litany was an institutional notion. We are talking about interlocking institutional facts. The whole point oi the institutional is often to structure the brute. For example, recently 1 went and stood in front oi a wom an at a counter. 1 made noises and she made noises, 1 gave her a plastic card, she gave me sheets oi paper, and the next thing is 1 was on an airplane on my way to Europe. The m ovem enl oi my body was a brute fact. My body moved from California to Europe. But the institutional tacts made the brute fact possible. VVe are talking about a structure whose point is nol just to em pow er o ther institutional 3 3 J o h n R . S e a r l e structures, but to control brute reality. However, the structure is also fairly fragile and the atnazing thing is how rapidly lt can collapse. I will never forget the m om ent, w hen 1 saw the people climbing over the Berlin wall on television, lt was an amazing m om ent, because 1 was ot a generation that thought the tw o-pow er division oi the World w ould go on indefinitely . But there came a point, w hen the system oi institutional reality was simply no longer acceptable and it just collapsed quite suddenly. So you can have a col- lapse of the institutional s tructure, il it's no longer accepted , and you can have a decay oi the institutional s tructure of the sort that I have been describing. IV Solutions to the puzzles We have a couple of minutes left, so 1 am going to show you how we solve these puzzles 1 began with. First, hovv can there be seif-referentiality w ithout circularity or infinite regress? Weil, the answer is, you d o n 't have to use the word "m oney" in order to define money. The word "m oney" functions as a sum m ary term or as a place holder for be inga medium of exchange, a store of value, a payment for Services rendered, a measure of value of o ther currencies and so on. And if som ething peiiorm s ali of those functions, then it's m oney So we do not have a vicious circularity or infinite regress. II 1 say in order for som ething to be money, people have to believe that it's money, there is no circularity because they can have that beliel w ithout having the word "m oney". The word "m oney" here just is a place holder for a large n u m b er oi other functional expressions. Now, w hat about our second and th ird points, the role of language and especially performatives, how can performatives create institutional reality? And the answer to that is, that where the X-term is itsell a speech34 S o c i a l o n t o l o g y a n d t h e p h i l o s o p h y o f So c i e t y act, then typically you can create the reality by performing that speech-act. So you can make som ebody h u sb an d and wife by saying "I p ronounce you husband and wife", or you can find som ebody guilty in a court if you are a judge by saying "I iind you guilty as charged". And the creation of the institutional fact need not even take the performative form. It says on this 20 dollar bill "This note is legal tender for ali debts public and private ". Now, 1 am an epistemologist and my natural worry is "how do you know?", and I want to write to the Treasu ry and say "How do you guys really know that it s legal tender? Have you done a survey, have you done an empirical study?" And the answer is, it isn't an empirical claim. They make it legal tender by declaring that it s legal tender. O u r next point and this is the most im portant is the constitutive role of language. YVhy is language constitutive of institutional reality, in a way that it is not constitutive ot o ther forms oi reality? YVhy is it that money and property and marriage and governm ent require a vocabulary in a vvay that tectonic plates and gravitational attraction and galaxies do not require a vocabulary tor their existence? That is in fact a very hard question to answer and 1 spent a whole chapter on it in the book on which this lecture is based, but now 1 wi 11 just summarize the answer in one sentence: lor in- stitutional facts there has to be some form of sym bol- isin because there isn't anything else to m ark the transition from X to Y. We just count the X term as having a Y status. But if \ve so count it, there must be some vvay to represent that counting feature. My dog can see som e- body cross the line while carrying a hali, but can't see him score a 'touch d o w n '. YVhy not? Because in order to see him score touch dow n you have to have some way to represent the extra status function and that requires language. Now you might ask "well why do you need words?" 3 5 J o h n R. S earle And the answer is in some cases you do not. Suppose we kept score in a soccer m atch by piling up Stones. I score a goal so 1 get a white Stone to put on my side and you score a goal so you pu t a white Stone on your side, and these are points. 1 got a point and you got a point. But now here is the 'p o in t': These Stones now play a linguistic role. They are now symbolic. They now play the role oi symbolizing scoring in the game. So the language or some other symbolismi has to be constitutive because there isn't an independen t ontology. The move from X to Y is itself a symbolizing linguistic move and there has to be some way for us to represent lt, othervvise it doesn't function. Weil, ou r last questions had to do with systematic relations oi institutional reality and also with the priority of the brute over the institutional facts. The answer to the first of these questions is this: The reason we have ali this institutional ontology is to organize and regulate our lives. So there has to be a set of interlocking institutions. W hat 1 haven't had time to teli you is, ali of this at bottom is about power. We are talking about how society organizes power relations. lt normally does it through the institution of status functions. Somebody is the boss and som ebody else an employee, som ebody is an elected president, som ebody is deleated and so on. And ali of this is designed precisely to intersect with o ther elements of the society. So, in order to have money you have to have a system of rights and obligations. You have to have the ability to buy and to sell, to store value in the form of money, to receive money as paym en t for Services rendered. So, that is the reason for the in terlocking complexity. That s what we have the system for. lt is designed and has developed to enable people to cope in complex social groups, in pow er re - lations . The final question was, why is there this priority of brute facts over institutional facts? And the ansvver to 3 6 S o c i a l o n t o l o g y a n d t h e p h i l o s o p h y o f So c i e t y th a t is, because the iteratecl s t ru c tu re o f 'X c o u n t s as Y' has to b o t to m ou t somevvhere. For in s tance , m y m ak- ing a co n t ra c t can be der ived from my s ign ing m y nam e, an d m y s ign ing my n am e can be a m a t te r of ce r ta in w o rd s b e in g vvritten on a page. But th e n you reach the p o in t w h e re there isn 't any m o re 'X c o u n ts as Y\ You just have the b ru te laet, e.g. the m a rk s o n the page, as X -term . So inst i tu t ional reality of o w n e r s h ip a n d obli- ga t ions is built on top of physical reality, it has to b o t - to m ou t in physical rea lity Novv to con c lu d e , I said I w o u ld like us to t h in k of the possib ili ty ot crea ting a p h i lo so p h y o f Society, w here o u r first task w o u ld be to get an u n d e r s ta n d in g of s o - cial o n to lo g y 11 we got tha t , then , I th in k , it w o u ld give different east to o u r political a n d social theories . 1 th in k tha t polit ical p h i lo so p h y in the W est co n ta in s a large fantasy e lem e n t a b o u t h o w we m a k e social c o n t ra c ts w ith each o th e r an d a b o u t vvhen peop le can v iolate o r n o t violate the social con trac t . But in real life it i s n 't like that, in real life it s a m a tte r of ac ce p t in g o r rejecting , o r fu r th e r in g o r f ighting aga inst in s t i tu t ional reality. A n d one way to create in s t i tu t iona l reality often is to act as if it a l ready existed. This is h o w the U n i te d S tates was crea ted . T here was no w ay that a g r o u p of p eop le c o u ld get to g e th e r in P h ilade lph ia , ali of th e m sub jec ts o f the British C r o w n in a British C ro w n C o lony a n d dec la re th em se lves to be an in d e p e n d e n t na t ion . T here was no in s t i tu tiona l s t ru c tu re to enab le th e m to do that. Weil they just d id it. They d id it an d they got aw ay w i th it. It h e lp ed tha t they h ad an a rm y a n d h a d the s u p p o r t of the F re n c h an d so on. But you can do th is if you can get aw ay w ith it. You can create an in s t i tu t ional reality just by ac ting as if it a lready existed. O ne last th o u g h t I w a n t to leave you w ith a n d th a ts this. In o rd e r to a r ticula te th is l have m a d e it look m u c h m ore co n s c io u s than it really is. Most of these th ings dev e lo p q u i te unconsciously , a n d in d e ed peop le typi3 7 J ohn R. S earle cally are not even aware of the structure of institutional reality. It often works best when they have false beliefs about it. So there are a lot of people in the United States, \vho still believe that a dollar is only really money because it is backed by ali that gold in Fort Knox. It s the gold in Fort Knox that makes the dollar money. This is a total fantasy, oi course. The gold has noth ing to do with it. And people hold o ther false beliefs. They be - lieve som eone is king only because he is divinely inspired , or they believe that marriages have to be made by God in heaven, and so on. 1 am not trying to discourage them in these beliefs because often the institu- tion (unctions best when people hold false beliefs about it But I th ink as philosophers we must, as a first step in unders tand ing social reality, and as our first step in creating a philosophy oi Society, unders tand the basic ontology of social reality. Note 1 A version of this text has appeared in A n a l y s e & K r i t i k 20 (2/1998), pp. 143-158. Reprinted by permission. 3 8 M argaret Gilbert SOCIAL RULES AS PLURAL SUBJECT PHENOMENA s we shall see, investigation of the nature of social rules is a good way into some deep questions about social reality. These questions have to do with what one might call the b a sic s tr u c tu re of the social world. It is generally agreed that social rules are pervasive and consequential social phenomena.1 What, though, is a so- cial rule? I take it that a so c ia l ru le is th e ru le o f a socia l g r o u p .2 Precisely what this amounts to, according to our everyday understanding, is the topic of this article. Perhaps the most famous account of social rules to date is that proposed by the late K. L. A. Hart in his classic work T h e C o n c e p t o f L a w .3According to Hart, social rules underlieone of the most important and clistinctive of human institutions, the institution of law.4 Hart s account of social rules is a rich one, incorporating a variety of feature s h In this paper 1 first revievv Hart's account of social rules. 1 then articulate three significant problems for it. Finally I sketch an alternative account that avoids the problems. This account involves a kind of hölisin that is lacking in Harts and related accounts.6 I. Introduction 39 M a r g a r e t G i l b e r t II. Hart on social rules a. H a r t's discussion Hart asks: 'What is the difference between saying oi a group that they have the habit, e.g. oi going to the ein- einä on Saturday nights, and saying that it is the rule with them that the male head is to he bared on entering a church?'. 7 He goes on to describe a variety of features that he suggests must be present when there is a social rule. He can be construed as proposing at least a partial analysis of 'the statement that a group has a certain rule' in common parlance.8 In his discussion of the nature of social rules in gen- eral Hart focuses on rules of a particular and central type, and l shall do so as well. First, such rules are p re s c r ip t iv e . That is, they can be formulated in terms of what is 'to be done'. Second, they are basic or p r i m a r y at least in the sense that they do not exist by virtue of the operation of any special rule-generating rules such as 'We are to do vvhatever Rex tells us to do'. Hart s discussion is relatively mformal. For present purposes I shall characterize his account oi social rules in terms of four central features. The account runs as follows. There is a perfect case oi a socia l ru le in a g ro u p G that action A is to be done in circumstances C, il and only il every member oi Gg : (1) regularly does A in C (this behavior need not be invariable).10 (Call this the re g u la r i ty feature.) (2) regards doing A in C as a 'standard of criticism' tor the behavior of members of G .11 (The s t a n d a r d of cr i t ic ism feature) 40 S o c i a l r u l e s a s p l u r a l s u b j e c t p h e n o m e n a (3) criticizes any member of G who does not do A in C and puts pressure to conform on members of G vvho threaten not to do A in G.12 (The cr i t ic ism a n d p r e s s u r c feature) (4) believes that such criticism and pressure is legitimate or justified in the following sense: non-performance of A in C by any member of G provides any member of G (either the defector or any other m em - ber) with a goocl reason to express criticism and exert pressure. 13 (The cr i t ic ism a n d p r e ss u re th o u g h t ju s - t i f ied feature) One further aspect of Harts view of social rules may be mentioned at this point. Hart is at pains to avoid the idea that the significant internal or psychological as- pect of social rules is 'a mere matter of Teelings". 14 He does allow, however, that when there is a social rule members of the relevant group typically feel th a t th e y a re in s o m e sense 'b o u n d ' to b e h a v e a cco r d in g to the ru le . 15 Though he does not make much of this, and it should not be placed at the core of his account, we might add to the above list that every member of G: (5) leels in some sense 'bound' to conform to the pattern: doing A in circumstances C .10 (The J e l t b in d in g n e s s feature.) \Vhatever else might be said about these live features, it is plausible to claim that they are commonly present in those contexts vvhere we deem there to be a social rule according to our everyday understanding. It is therefore worth considering them carefully. Are some of the listed features more fundamental than others, clearly deeper or more basic? Is the list incomplete in some way? Does it call for amplification? 41 M a r g a r e t G i l b e r t b. A key element in I la r ts account: punitive pressure Feature (3) the criticism and pressure feature -involves certain actions and utterances, while feature (4) involves the belief that these actions and utterances are ju s t i j ie d . It seems that feature (4) is the fundamental feature here, for it will presumably underpin the ac- tions and utterances in question. 17 In any case feature (4) criticism and pressure thought ]ustified - is oi the first importance. We shoulcl be clear about what it amounts to. W hen this feature is present group members believe that they are justified in doing more than simply j u d g in g deviants adversely. Indeed, they believe that they are justified in doing more than dispassionately c o m m u n ic a t in g a judgement oi error . Hart implies that the criticism he has in mind here is a closer cousin to p re ssu re fo r c o n f o r m i t y than is a mere Comm unica tion o) error. I take it that the type of criticism in question is a matter of reproojs, rebukes , and the like, directed at those who deviate from the pattern oi behavior at issue. In other words, it is a matter of something that can be argued to have a p u n i t i v e element. it constitutes a form of p u n i s h m e n t . 18 So as to keep the kind of criticism at issue here clearly in mind, 1 shall refer to it as p u n i t i v e c r i t i c i s m ,ly It contrasts with what we might call d e s c r ip t i v e criticism, which merely notes or points out an error. Hart stresses that vvhere there is a social rule it will be considered legitimate to pressure w o u ld -b e d ev ia n ts to conlorm. He speaks of 'd e m a n d s fo r c o m p l ia n c e ' in this context. Presumably any such 'demands' will be 'b a c k e d by th re a ts ' at least insofar as punitive criticism can be expected should the deviant act after ali be performed. To characterize feature (4) succinctly I shall now say that it involves the belief that it is justifiable to meet deviance with p u n i t i v e pressure . This is to be understood 42 S o c i a l r u l e s a s p l u r a l s u b j e c t p h e n o m e n a to include both punitive criticism (reproofs and the like) and such pressure as demands for conformity (backed by threats of punitive action).20 Hart was right, I believe, to separate out and to stress feature (4). Any account of our everyday concept of a social rule that neither includes nor implies the existence of feature (4) will be importantly lacking.21 III. A s t ructura l feature of social rules How could punitive pressure be justilied in the context of a social rule? And vvhat type of justification is at issue ? At one point Hart speaks of justification in terms of 'having a good reason'. 22 Now someone could have a good reason to p r e s s u r e another to do a certain thing, without being in a position to p u n i s h them for not doing it. What one does cannot c o u n t as punishment unless one has a certain standing. (One can, of course, act in a p u n i t i v e f a s h i o n or 'punishingly' wilhout any Special standing.) One who is j u s t i f i e d in i tn p o s i n g p u n i s h m e n t as s u c h , then, requires the standing or entitlernent to punish. In other words, to judge oneself justified in punishing is (in the first instance) to judge oneself entitled to punish. Now consider the following dialogue betvveen a mother, Becky, and her daughter, Phoebe: Becky (reprovingly): 'Phoebe! YouVe brought the cat in!' Phoebe: 'You're telling me oli again!' Becky: 'I should think so! We've a rule against bringing the cat in!' or, 'Weil, you've broken one of our rules again!'23 Becky s response to Phoebe appears to be perfectly in order from a logical point of view. That this is so sug43 M a r g a r e t G i l b e r t gests the fcllowing about our everyday understanding oi what it is for a group to have a rule: if a given rule is the rule oi a particular group, this entitles group members to impose a form of punishment on members who deviate from the rule. Recky's appeal to th e ir rule is evidently seen to explain, in the sense of justifying, the imposition of a form ot punishment (involved in reproving Phoebe or, as Phoebe puts it, 'telling me off'). Any such justilication presupposes an entitlement to impose such punishment. Can \ve be somewhat more precise about the presumed hasis for this entitlement? Consider a slightly dilferent dialogue. Becky (speaking as if Phoebe has somehow o f fe n d e d a g a in s t h e r ): 'YouVe brought the cat in!'. Phoebe: 'YVhats that to you?'. Becky: 'It's against our rule!1 Once again, 1 take it that there is nothing untoward in Becky's responses, including her oftended surprise.24 This suggcsts tha t a g r o u p s h a v in g a ru le g r o u n d s a c la im fo r each m e m b e r a g a in s t e v e r y m e m b e r fo r c o n jo r m i ty to the rule. Here Becky regards herself as having been of- fended against by Phoebe's non-conlormity citing their rule as the grounds for her implied claim on Phoehe. YVe might now add the lollovving feature to Harts list: (There is a social rule in group G that action A is to be done in circumstances C il and only il every nientber of G] (4') believes that: every group member has a c la im ag a ins t every other group member for the pertormance ot A in C, a n d a c o n s e q u e n t tit le to e x e r t p u n i t i v e pressure on any other group member in favor oi dotng A in C. 4 4 S o c i a l r u l e s a s p l u r a l s u b j e c t p h e n o m e n a In describing feature (4') I have written that every member of G believes certain things. Now, we ourselves have social rules and vve take ourselves not simply to believe but rather to kno iv or (in that sense) u n d e r s ta n d that these r u le s , in a n d of th e m se lv e s , g r o u n d c la im s a n d en t i t le - m e n ts of the sort in q u es t io n . Rather than altering feature (4'), 1 suggest that vve now simply add to Harts list: (A) The existence oi a social rule in a group, in and oi itself, gives group members a title to exert punitive pressure on one another for conformity to the relevant pattern, in the appropriate circumstances. lt does this by virtue of grounding a claitn for each group member on every other group member for conformity (A) might be said to describe a 'structural feature' oi social rules. We understand that it is because of the truth of (A) that feature (4') is present when there is a social rule in some group Members believe that they have a claim on one another, and so on, because they do have a claim. More precisely, members knovv, rather than believe, these things. Analogous points can be made for feature (4). IV A problem for Harts account Let us now set apart features (4) and (4') as features i n v a r ia b ly co rre la ted vvith social rules that can be explained by the existence of a social rule. Once vve do this, the key features remaining on Harts original list are (1), the regularity feature, and (2), the standard of criticism feature. I want novv to press the follovving question vvith respect to each of these features (and, eventually, vvith respect to their conjunction). Is it the case that, by vir45 M a r g a r e t G il b e r t tue of the presence of the feature in question, a n d th a t a lo n e , members of the relevant group have a claim on other members for conformity to the pattern in ques- tion, and a consequent title to exert punitive pressure for conformity in the appropriate circumstances? I am supposing that according to our everyday understanding it is our having a given rule, a n d th a t a lo n e , that grounds the claim in question. We need to ask, therefore, whether there is what 1 shall call a d irect argument from one of the features in question, or from their conjunction, to the claim. No new information should be introduced. a. The regularity feature It is surely implausible to claim that feature (1), the regularity feature, itselfgives members the relevant type of claim on one another for performance. As it stands, the laet that The members of group G regularly do A in C is not enough to give members of G a claim on one another for the performance of A in C. 25 It is worth considering two kinds oi argument which introduce additional assumptions beyond the assumption of a regularity in behavior. These assumptions invoke what may be plausible additions to the regularity feature. The lirst kind of argument invokes an 'entitlement to expect' conlormity. With or without preamble, it supposes that: ( l ) M e m b e r s of G h a v e reason to h e l ieve th a t m e m b e r s of G will c o n t in u o to do A in C in the f u t u r e .2ö li proceeds as follows. Given (l): (2) Members of G are entitled to expect luture performance from one another. Given (2): (3) each member of G has a claim on other members for the performance ot A in G. There is the following intransigent problem vvith this argument. The sense in which the argument undoubt46 S o c i a l r u l e s a s p l u r a l s u b j e c t p h e n o m e n a edly shows members of G to he 'entitled to expect' performance is a matter of their being entitled to p re d ic t that performance will be forthcoming. Such an entitlement , however, is not in itself sufficient to ground a c la im on o th crs fo r th e ir p e r fo rm a n c e . The second kind of argument involves implicit appeal to a general moral principle. Various such arguments are possible. Thus consider an argument making use of the assumption that ali persons have a moral claim against ali persons not to be put in a position where they may detri- m e n ta lly rcly on a reasonable but unfulf illed expectation. Given that members of G reasonably believe that other members of G vvill do A in C in the future, this argu- ment, also, concludes that members of G have a claim on one another for the performance of A in C. This is an indirect argument on at least one count: it appeals to a moral principle.27 The same can be said, evidently, of ali arguments from the regularity or expectation feature which appeal to moral principles in this way. b. The s tan dard o f criticism fea ture 1 now turn to feature (2) the standard of criticism feature. I construe this as follows: g ro u p m e m b e r s regard a c e r ta in p a tte r n of ac tion as a s ta n d a r d in re la tion to w h ich th e ir b e h a v io r m a y be ju d g e d as co rrec t o r incorrcc t. What kind of standard is at issue? Are correctness and incorrectness, here, matters of moral rightness or wrongness? Harts few examples of social rules suggest that, in his view, this is not so. The example rule 'YVhatever Rex 1 enacts is law'28 does not look like a moral rule and surely need not be so viewed. The example rule that 'the male head is to be bared on entering a church'29 is similar. It could apparently be understood without the application of any moral un4 7 M a r g a r e t G i l b e r t derstanding, whether or not moral ideas of some kind in tact led to its adoption.30 Harts example of baring the head in church is couched in the specific form oi a simple f iat: such-andsuch is to be d o n e . No reasons are given, or obviously implied. And he vvrites: '...if a social rule is to exist some at least must look upon the behavior in question as a general standard to be fo l l o w e d by the group as a whole' (my emphasis).31 lt seems, then, that we should construe regarding a pattern as a s ta n d a r d of c r i t ic is m for ones group as re- garding the pattern as, simply, a pattern that is to be conformed to, so that members are in error if they fail to conform to it, ali else being equal. The nature ot the error, and the provenance of the fiat are not specified. Thisaccords with intuitive judgements. Intuitively, there can be a social rule which is not itself at the same time a moral rule.32 Something seen as a rule is, meanvvhile, something seen as 'to be conformed to'. Does Harts feature (2) of itself ground mutual claims for performance, claims that entitle the claimant to exert punitive pressure in favor of conformity? The laet that 1 personally regard this pattern as a standard for ali members of a certain group, including myself, does not seem to give me any Special title to exert pressure in lavor oi performance.53 What of the presumed fact that e v e r y o n e in our group regards this pattern as a standard? Does that directly ground the right type of claim in each mernber oi the group? lt is hard to see how a direct argument Irom a standard 'shared' in th is way can be lound. Perhaps a standard 'shared' or 'com m on' in some o t h e r sense is at issue. I shall shortly argue that this is indeed so. Much more needs to be said, however, than is given in Hart's text. 1 conclude that Harts features (1) and (2) are not singly such as to directly ground the relevant type of 48 S o c i a l r u l e s a s p l u r a l s u b j e c t p h e n o m e n a mutual claims for performance or the corresponding rights to exert punitive pressure. Nor would they appear to be more powerful in conjunction. Hart's account of social rules is therefore problematic. V Three issues for any account of social rules My discussion oi Hart so far has brought the following issue into focus: vvhat is it about a social rule that immediately grounds claims for performance and corre- sponding rights to exert punitive pressure something that we believe our social rules to do?34 Call this the g r o u n d in g problem (for a short label). It is a problem any tully adequate account of social rules must solve. At least tw o o th e r im porte in t p ro b le m s are raised by Harts account. The lirst can be brought into focus by once again considering Harts feature (2). According to Hart when there is a social rule in a group the individual group members personally 'regard such-and-such as a standard that ali should follow'. 1 have construed this in terms of the personal endorsement of a certain fiat. This construal raises the question whether individual members of the group are conceived of, and conceive of themselves as, in effect, issu in g the relevant fiat. If so, it seems reasonable to ask: by what righ t o r a u th o r - ity o r title do they take themselves to do so? Paradoxically enough, there is here a problem analogous to that of Harts imaginary Rex I, who specifies what is to be done by the members of a certain population , but lacks the authority to do so.35 Hart proposes that Rex's problem (lack of authority) would be solved if there were a socia l ru le in the relevant population precisely g ra n tin g h im a u th o r i ty to 'introduce new standards of behavior into the lile of the group'.36 Hart vvrites: Tn its simplest form this rule will be to the effect that whatever actions Rex specities (perhaps in certain for49 M a r g a r e t G i l b e r t mal ways) are to be done.'37 I propose that Rex's problem recurs at the core of Harts account of social rules. Suppose that ali we know about the members oi a population is that each member of the population regards obeying Rex as a standard to be adhered to by the members ot the population, and so on. By what right do any oi them issue prescriptions for the population as a whole, with respect to who may give them orders or anything else? Each can have a view on such matters , oi course, but such views have an air oi irrelevance. The fact that they ali have the same view does not seem to make a diflerence. There may be sa fe ty , but it is by no means clear that there is a u th o r i ty , in mere numbers. Rex's problem was this: how can he achieve a righ t to specity what is to be done for the group as a whole? Harts solution in terms of social rules as he characterizes them re -ra ises th is p ro b le m a t th e leve l o f socia l ru les 38 Assuming that social rules involve the issuing of a fia t by someone or something, we have what 1 shall call the g ro u p s ta n d a r d problem: w h o o r w h a t can a p p ro - p r ia te ly issue a fia t fo r a xvhole g ro u p ? 39 In order to solve this problem, 1 believe that we must go beyond the individualism oi Harts account oi social rules (and of many related accounts). Finally, there is the b in d in g n c ss problem. Though he dovvnplays its importance, Hart himseli observes that in the context oi a social rule people 'say they 'feel bound' to act in certain \vays'.40 The following question arises: Is there an appropriate basis lor this leeling of being 'bound? Where there are social rules are group members indeed bound to perform in some relevant sense, perhaps in a sense connected with the justified reprimands of others? Hart himselt may be willing to side at least to some extent with those who take the 'feelings of being bound' to be illusory. In any case, vvhenever someone claims that a prevalent sense of things is in whole or in part 50 S o c i a l r u l h s a s p l u r a l s u b j e c t p h e n o m e n a 'illusory' this ahvays leaves open the possibility that one has missed the correct explanation unless one shows that there must he an illusion in this case.41 The b in d in g n e ss p ro b le m is the problem of finding a warrant for the leit bindingness of social rules or demonstrating the im possibility oi such a solution. In the next tvvo sections I sketch an account of social rules that surmounts each oi the three problems just noted. VI. The plural subject account of social rules a. Joint c o m m i tm e n t a n d ob liga tion In my book O n Social Facts (1989) I argued at some length that underlying many of our Central social or collectivity concepts is an important concept of jo in t c o m m i t m e n t ,42 1 there proposed43 that the concept oi a social rule is one of the social concepts in qucstion. In this section I say something about joint commit- ment with an eye to showing, in particular, how this type oi account takes care of the problems.44 I take a personal decision to be a paradigmatic case of a c o m m i t m e n t in some intuitive sense. One who decides to do A is now committed to doing A, so long as hisor her decision stands. A personal decision is also a paradigmatic case oi a w h o l ly in d iv id u a l commitment: as far as the concept oi a personal decision goes, I can com e b y such a commitment alone, \vithout the inter- vention of any other party. I can also revisc my commit- ment or rcvohc it altogether vvithout the involvement oi anyone else. In short, a wholly individual commitment is niine to crea te a n d m in e to g ive up . It is also mine to break: no one else can violate a vvholly individual commit .nent.45 51 M a r g a r e t G il b e r t Those who are subject lo a jo in t commitment may be said to have ensuing 'individual' commitments in a sense: each of the individual parties will indeed be committed . But an 'individual' commitment of this sort is significantly different from what 1 have called a \vholly individual' commitment. A joint commitment is, precisely, joint. It is the com- mitment of more than one person. This has consequences for the 'individual' commitments that derive from a joint commitment: 1 cannot be subject to such an 'individual' commitment independently of ali other people, and 1 cannot unilaterally rescind such a com- mitment. lt stands or falls only with the underlyingjoint commitment, which itsell can only be rescinded by us (the parties to it).40 YVith respect to the content oi a joint commitment, in general a joint commitment is a commitment of certain parties to do something as a b o d y . (lt may sometimes be less awkward to speak oi being jointly committed to do somethingjoindy, or togc thcr .) 'Doing some- thing' here must be interpreted broadly. 1 have elsewhere argued that a standard interpretation oi 'We believe that such-and-such' is in terms oi a joint commitment to believe that such-and-such as a body.47 I have elsevvhere used the term 'plural subject' to refer to those who are jointly committed to doing some- thing as a body.48 They will then constitute the 'plural subject' oi the 'doing' in question. We should distinguish between basic or 'ground-level' joint commitments andderivedjoint commitments, since the conditions under which these conre to be are diflerent . Suppose \ve are jointly committed jointly to accept that whatever Jones tells us to do is to be done. 11 Jones now tells us to do something, we presumably have a (derived) joint commitment jointly to accept that we are to do that thing. The derived joint commitment comes about on the basis of the original basic joint com52 S o c i a l r u l e s a s p l u r a l s u b j e c t p h e n o m e n a mitment plus Joness telling us to do something. How do basic joint com m itm ents come about? Roughly, individuals must openly express their readiness to be jointly committed iu the relevant way along with the relevant others.49 The parties to a joint commitment need not know of one another as particular individuals, though of course they may. One may be party to a joint commitment between oneselt as this p a r t icu la r person a n d ano ther par- ticu lar person or o ther p a r t icu la r people. But one may also be party to a joint commitment betvveen oneself and another or others under s o m e p a r t ic u la r description, such as 'friend oi Joe' or 'person living on this island'. In many populations, particularly large ones, the par- ties do not know of one another as particular individu- als. For instance, they know that many people live around them on a particular island but they do not know each of these people personally or know oi them as particular individuals. Nonetheless the island dwellers can participate in a population-wide joint commitment; the parties to the commitment would understand themselves to be jointly committed insofar as they are living on the island or q u a island-dwellers. One important aspect of this type of joint commitment is, evidently, that should the rel- evant description cease to apply to a given person, they will automatically be freed from the commitment.50 A final point about joint commitment in general.51 A joint commitment like any other may be said to require that the participants act (or refrain from acting) in certain ways, ali else being equal. However, this case has a special feature that is not present in ali cases of commitment. A joint commitment is not the creation of any one of those who are subject to it, nor can it be removed at the pleasure of any one person. There is a clear sense in which the parties are tied or bound to one another with respect to their personal subjection to the requirement in question. Once the commitment is in 53 M a r g a r e t G il b e r t place thanks to the action of ali, each is subject to it, absent the concurrence of ali (as long as it applies to them). Let us say that one who is party to a joint commitment has an ob liga tion to perform the relevant act or acts. Such an obligation is clearly an obligation oi a Special type. Among other things, it essentially involves at least two people, the person with the obligation and one or more others. 11 we call the person with the obligation the ob ligor (on the model of promisor) we may call the rel- evant others theobligees (on the model of promisee). These are the (other) people to whom the obligor is tied with respect to his commitment to a certain course of action. Given that we speak of the ob liga tion s ot the obligor, it seems that we can speak oi the correlative c la im s or rights of the obligees: they have a claim on the obligor lor performance of the act in question/2 I suggest the sense of 'obligation' (and 'right') introduced here is not a novel one. Much oi our everyday taik of obligations and rights is plausibly vievved as a matter of relerence to a joint commitment. I include in this class the obligations oi agreements and promises.53 h. The p lu ra l su b jec t a c c o u n t of soc ia l rules 1 can now sketch an account of social rules, according to our everyday underslanding oi what such rules are. More specifically, it is an account of when a population has a tule to the eflect that members oi that population are to perform a certain action in certain circumstances. 1 do not aim to give a full defense oi this account here, to consider possible objections, or to concern mysell with ali possible matters oi detail. 1 take the ac- count to have soine initial plausibility, and want to show that it avoids the problems noted for Hart s account. It has rnerit at least to that extern, and to that extent is 5 4 S o c i a l r u l e s a s p l u r a l s u b j e c t p h e n o m e n a superior to a variety of accounts more or less approximating to Harts. 1 am inclined to think that il or something like it is a worthy heir to Harts account. The account which might be dubbed the p l u r a l s u b j e c t or j o in t c o m m i t m e n t account runs roughly follows: There is a soc ia l r u le if and only il the members of some population P are jointly committed to accepting as a body a requirement of the follovving form: members of P are to do A in C. (Some reason for doing A in C may be specified, or it may not.) Il we want a somewhat shorter version, we might say, first, that members oi a population P j o in t l y a c c e p t a r e q u i r e m e n t if and only il they are jointly committed to accepting that requirement as a body Given that 'joint acceptance' is so understood, we can now write, alternatively (and equivalently): There is a soc ia l ru le if and only if the members oi some population P jointly accept a requirement of the following lorm: members of P are to do A in C. (Some reason for doing A in C may be specified, or it may not.)54 Some comments are in order: 1) In vvriting that members 'jointly accept a require- ment of the follovving lorm: they are to do A in C' I mean to capture the idea that such joint acceptance amounts to the imposition of a requirement. One might, therefore, also vvrite that they 'jointly require that mem- bers are to do A in C .55 2) The phrase 'accept (require) as a body' is just one of the possible phrases with vvhich the relevant idea might best be indicated. One might also vvrite 'accept as a unit', 5 5 M a r g a r e t G il b e r t for instance, or 'accept as a single person'. The relevant joint commitment is a commitment, if you like, to constitute , as tar as is possible, a single entity with a certain psychological property (in this case accepting or requiring something). 3) As ordinarily understood, a joint commitment jointly to accept something does not involve a commitment personally to accept vvhat is jointly accepted. In other words, that members of a population jointly accept: 'We are ali to do A in C does not imply that they personally accept this. As 1 have argued in discussing the group standard problem, it is not clearly i n t e l l i g i b le without some Spe- cial stage-setting that a given individual personally accept 'We are ali to do A in C in the sense at issue here, that is, in the sense that he or she Tequires' that we are ali to do A in C. That it does make sense that as a body wc require that wc are ali to do A in C is one way of arguing that 'We require...' does not imply '1 require'. 4) It is striking that this account corresponds to (ew if any oi Hart's listed features. However, it can be argued that if something approximating to this account is correct , then ali ot Harts conditions will be salisiied, one way or another. Some oi these features vvill be derivable more or less as a matter of logic. Others will be such that, in standard circumstances, one can expect them to resuit from the existence of social rules as characterized here. Thus it does not follow from the fact that one is party to a joint commitment that one vvill conform to it. One may be swept away by blind passion, or have vveighty moral reasons forbidding one to contorm. Nonetheless, in the absence of these things, one is likely to lind one has reason enough to conform. On the one hand there is the simple fact that one is subject to a commitment. 56 S o c i a l r u l e s a s p l u r a l s u b j e c t p h e n o m e n a On the other hand, one knows that should one default, one has otfended against other people, who have the standing to rebuke one for it.56 5) There is a holism in this account, which is, absent from that of Hart. The holism here is essentially the holism of the concept of a j o i n t commitment. 6) Relation to agreements. No appeal is made in this account to an agreement. As I understand it, an agreement amounts to a joint decision, founded in a joint commitment to accept as a body a certain decision. Given this understanding, an account oi social rules in terms of agreements would have soine oi the virtues oi the account proposed. The three problems for Harts account, the grounding, group standard, and bindingness problems, would ali be solved. An account in terms oi agreements would be flavved by lack oi realism, however . An agreement on a rule for the group seems not to be present in many contexts in which we allow that there are social rules in the sense in question. A joint commitment can arise more informally than an agreement can, through a more gradual process. One way in which this can happen is that someone in the relevant population speaks o f 'our rule'. I believe that a standard interpretation of such phrases is in terms oi an underlying joint commitment. In the present case, 'our rule' would be interpreted as 'a requirement we jointly accept'. 11 what this person says is not rejected the practice of so referring to the rule may spread until it is clear to everyone that everyone is ready to be party to the relevant joint commitment. The initial reference to our rule' may be tendentious, but once this way of talking is generally accepted, it may be deemed to have lound a genuine basis.57 In any case, these uses of language do not stand alone. 5 7 M a r g a r e t G i l b e r t Olher things people say, and things that they do, will help to confirm the plural subject interpretation o f 'our rule'. In particular, the kind of behavior Hart alludes to (the irnposition and acceptance of punitive pressure) will help confirm this interpretation as will dialogues oi the kind discussed in this article.58 c. R ela tion o f the p lu ra l subject a ccou n t to the three p rob lem s 1. Relation to the grounding problem By virtue of the joint commitment present when there is a social rule, each member of the population in question has a claim on every other member for conformity to the rule. These claims are correlates of the obligations joint commitment creates. Each member is obligated to every member to conform to the rule. Each member has the standing or right to rebuke any m em - ber who does not conform. The exercise of any such right will ahvavs be subject to moral and prudential constraints. In some circurnstances it rnay not be appropriate to do anything. Should one party rebuke another for nonconformity, hovvever, his standing in the matter will be perfectly clear. That he is, in the relevant sense, in a p o s i t io n to r e b u k e will not be in question. Members of the population will understand this, since ali are party to the relevant joint commitment and un- derstand the structure of such commitments. Thus the grounding problem linds a solution here. 2. Relation to the group standard problem On this account a social rules existence is a matter ot a joint commitment through which each party becomes 58 S o c i a l r u l e s a s p l u r a l s u b j e c t p h e n o m e n a obligated to the others to support a certain standard as a standard for the population as a whole. Here, vve accept a standard for us.59 The proposed account is couched in terms of a 'population ' rather than a 'social group'. 1 argued in O n Socia l F acts that any population in which the members are linked through a joint commitment will count as a 'so- cial group' on one s tandard understanding of that phrase.60 1 prefer to define a social rule in terms of a popula- tion insofar as a given population may in principle constitute a social group by virtue of having a given rule, and within the consciousness of the people concerned the extent of the group may be determined by some description such as 'friencl of Sally' or 'person living by Lake VVoebegone'. In other words, they understand their rule to be the rule of the population so specified, a popu- lation that they will at least now reasonably see as a social group in the relevant sense, given that the mem- bers are, as such, party to a joint commitment. A joint commitment creates, in effect, a new subject oi psychological attributes, a p lu r a l subject. These attributes are not yours, or rnine, or mine-and-yours, but rather ours: our beliefs, our goals, our acceptance of rules. To put the point more carefully, these attributes are attributable to the body we lorm by virtue of our joint commitment. In a clear way, that commitment unilies our agency, providing a new source of action. Il you like, it constitutes a new entity an 'us' or 'we'.M If anything or anyone has the authority to impose its will upon us it is surely precisely us. Hence the group stand- ard problem is solved also. 3. Relation to the bindingness problem A joint commitment by its nature involves obligations of a Special sort, and clearly could underlie a sense of 59 M a r g a r e t G ilb ert being 'b o u n d ' to conform to a rule. This account, then, provides a solmion to the bindingness problem. In this case one is 'b ound ' both horizontally and vertically , so to speak: b o u n d to others, and bound (ali else being equal) to conform. One is b ound (ali else being equal) to conform unless and until the o ther parties to the joint com m itm en t are willing to accept ones freedom. The sense oi being b o u n d that is g rounded in a joint com m itm ent is not, clearly, a matter simply of powertul Teelings of con tpu ls ion'.62 Nor is it w hat some tnay feel is the alternative, a matter of (in Harts w o rd s ) 'something external, some invisible part of the labric of the universe gu id in g an d con tro llingus in these activities.'03O O O It is g rounded , bu t it is not grounded in the fabric of the universe. It is of our own making. 11 there is a type of obligation that is not of our oven making then, as 1 see it, the obligations associated with social rules are not oi that type. VII. Summary Careful critical consideration of Harts account of social rules has led to ano ther account, the plural subject ac- count. Hart's account brings into locus the laet that when there is a social rule punitive pressure on deviants and w ould -be deviants is generally accepted as justilied. From this starting point 1 argued in favor oi the plural subject account. Punishm ent presupposes entitlement and it seems that we regard our g roups rules as themselves g ro u n d in g c la im s for p e rfo rm an ce and corresponding entitlements to punish for deviance. This argues against Harts ow n account oi social rules and in favor of the plural subject account. H a social rule is a jointly accepted s tandard we can expect many oi Hart's features to be present vvhenever a group has a rule. Thus, 6 0 S o c i a l r u l e s a s p l u r a l s u b j e c t p h e n o m e n a though this discussion rejects H art's account of social rules in favor of an account distinct in every particular, it remains quite close to Harts of social rules and, if correct, goes some way to confirm it .h4 Notes 1 Social th eo ris ts often use the te rm 'social n o rm ' as an a lte rnative to 'social ru le '. R elated p h e n o m e n a in c lu d e (social) conv en tio n s, cu stom s, and trad itio n s , ali o f w h ich ap p ea r to bear som e re la tion , p e rh ap s o f su b su m p tio n , to the ca teg o ry oi social ru les. O n th is see G ilbert, 1989, 4 0 3 -4 0 7 . 1 d iscu ss social co n v en tio n s (w ith p a rticu la r reference to D avid Lewis's vvork) in C h ap te r 6. In the sociological classic Suicide, Em ile D u rk h e im fam ously a rgued that an o m ie ' o r the p au city o f social ru les c o n tr ib u te d to h ig h er ra tes of su ic ide in h u m a n societies. 2 Cf. Raz, 1975, 52: 'A social rule is a rule o f a certa in Society o r c o m m u n ity '. 3 H art, 1961. It has been said th a t the 'cen tra l an d d is tin c tiv e e lem en t of H arts c o n tr ib u tio n to d esc rip tive ju r isp ru d e n c e ' is h is 'e lu c id a tio n of the idea of a social rule an d the m e th o d ology he app lies in that e lu c id a tio n ' (M acC orm ick, 1981, 43). The ex tensive lite ra tu re on H art's p h ilo so p h y o f law in c lu d es m o n o g rap h s by Bayles (1 9 9 2 ) , M acC o rm ick (1 9 8 1 ) , and M artin (1987). 4 T his p a p er will largely ignore the role of H a rts a cco u n t o f social ru les in his th eo ry o f law. H art m akes an d em p h asizes a d is tin c tio n be tw een w hat he calls 'p rim a ry ' an d 'se c o n d a ry ' ru les , an d claim s th at 'The u n io n o f p rim ary an d seco n d ary ru les is at the cen ter of a legal sy s te m ...' (H art, 96). S eco n d - a ry rules include ru les en ab lin g the p ro m u lg a tio n of new rules by p a rticu la r p eop le o r specific bod ies. A sim ple ru le o f th is k in d w ou ld be 'w ha tev er ac tio n s Rex (som e p a r tic u la r p e r- son) specifies are to be d o n e ' (H art, 56). T here has been m u ch d iscu ssio n and q u e stio n in g of the way H art d is tin g u ish e s be tw een p rim a ry and seco n d ary rules. See, for in stan ce , Sarto riu s , 1966. 5 H a rts acco u n t o f social ru les has been c ritiq u ed from m any ang les by n u m ero u s a u th o rs . Im p o rta n t reflections are to be 61 M a r g a r e t G i l b e r t found in Raz (1975), Dvvorkin (1977), MacCormick (1978), MacCormick (1981), Sartorius (1987), and Bayles (1992) among others. See also Harts own 'Postscript' to The C oncep t o f L aw , (second edition, 19947 1 do not attempt a review of this literature here I focus on Hart's original discussion and move directly to concerns of my own. 6 Cf. Cotterrell, 1995, 222-230, who sees Harts legal philosophy as expressive of an individualistic conception of lavv. 7 Hart, 54. 8 Hart, 55. Some may vvonder at the idea of characterizing Harts project as 'analytic', given his own caveats about what he thinks can be done for the concept of lavv itsell. On reading what he vvrites on social rules, hovvever, it is easy to see him as engaged in a form of semantic analysis. Thus at (Hart, 9) we find: T he account vvhich we are at lirst perhaps naturally tempted to give.. .is that to s a y th a t a n ä e e x is t s m ca n s on ly th a t . . . .Plainly this is not enough, even though it conveys p a r t o f w h a t is m e a n t. [My emphasis]' And his later discussion is conducted in such terms as 'There is no co n tra d ic tio n in sa y in g th a t people accept certain rules but experience no feelings of compulsion (Hart, 36; my emphasis). One way of taking his account of social rules is therefore to interpret such terms as 'm ust' and is enough' in terms of logical (or conceptual) necessity and sufliciency. 9 Hart suggests that it is alvvays possible that there be a minority of members vvho do not share the attitudes involved m the listed features (Hart, 55). We can thus consider the account given here (in terms of 'every mernber of G') as listing condiuons for a 'perfectcase oi a groups having a social rule. Compare David Levviss procedure in his discussion oi convention (Lewis, I 9o9). 10 Hart, 54. 1 1 55. 12 ibid. 13 54 (good reason), 55 (any member of G). 14 ibid. This (important) negative aspect of Harts account ot social rules is emphasized in the summary in MacCormick, 1981, 29. 15 56-7. Later in the book, when he focuses on what he calls 'rules of obligation' (see especially 84-5), Hart seems to deny that 'bindingness' is a feature or perceived feature oi ali so- cial rules. See the text belovv. 6 2 S o c i a l r u l e s a s p l u r a l s u b j e c t p h e n o m e n a 16 56. 17 Cl. M acCorm icks query as to w hether 'expressions of dem ands and criticism s' are 'constitutive of, or merely evident ia ry of, th e c r i t ic a l re f le c tiv e a t t i tu d e e n v is a g e d ' (M acCormick, 1978, 285). Hart hitnself distinguishes the existence of the 'critical reflective a ttitude' he regards as fundam ental from its 'display' in overt actions and utterances including criticisms and dem ands for conformity. See 56. 18 Cl. Hari, 10-11, \vhere H art refers to 'informal reproofs administered for the breach of non-legal rules'. Informal reproofs are seen here as the functional equivalent of legal punishment . For some discussion of the punitive nature of a rebuke see Gilbert, 1994a. 19 The criticisms involved in feature (3), also, will include those of the punitive type. 20 Hart uses the phrase 'coercive pressure' in the postscript to the second edition of The C o n cep t o f Law, 1994. There is a distinction between coercive' and 'punitive' pressure. 'P uni- tive' pressure, or the Lhreat of it, may ahvays be coercive. But coercion need not be, or be seen as, p u n itiv e -a form of punishment . 21 As is, therefore, what 1 lart calls the 'predictive account' (lOff). According to this, to say a group has a rule is simply to say that the reproofs and pum shm ents oi o ther m em bers are pre- dictab le i! m em bers deviate from a certain pattern of conduct

. Hart, 54. Elsewhere he writes of our taking a given nonlegal rule as a reason and ju s ti f ic a tio n ' for reproofs (H art's em phasis, 10-11). 23 Interpret Beckys use of we' and 'o u r' as inclusive here, rather than exclusive. That is, she includes Phoebe vvithin the 'we'. That it is inclusive is not self-evident from the dialogue as vvritten: that seems to be equally well open to either interpretation . 24 Cf. my discussion ol olfended rebukes' in Gilbert, 1994. 25 Com pare w hat Hart himself says: habits [se. of obedience] are not 'norm ative'; they cannot confer rights or authority on anyone' (58). 26 Is to say that 'm em bers of G regularly do A in C' already to imply that m em bers of G will do A in C (cc tcris p a r ib u s )'? lf so, then of course m em bers of G have reason to bclieve there will be futurc conform ity if they 'know of' the existence of 6 3 M a r g a r e t G il b e r t the 'regularity'. Perhaps, though , the regularity condition should be in terpre ted in term s of w hat people have done up until now. 1 have argued elsewhere that il vve are contem plating rational agents conceived of in a particular rather stringent way, a (prior) regularity tn behavior does not of itself im ply that there is reason to expect its continuance (Gilbert 1989, C hapter 6, and 1990a.) If we restrict ourselves to actual hum an betngs, it is not always true that a (prior) regular- ity legitimates expectations of continued conformity. There could be Special circum stances vvhich (as is know n) wtll soon cease to produce conformity, for instance, the past behavior was coerced but the coercion is about to stop. Perhaps a prior regularity tn behavior legitimates expectations of future con- formity, ce teris p a rib u s . 27 It can also be argued that the conclusion of this type of argument is not the desired conclusion, sinee it concerns the wrong type of claim or right. The type of m oral prem ise used in this argum ent alluding to the moral claims of ali persons against ali persons - \vill then quite generally fail to lead to the de- sired conclusion. 1 shall not pursue this argum ent here. 28 Hart, 56. 29 54. also 9. 30 This is not the place to explore w hat distinguishes a moral standard from o ther types of standard 1 rely here on a certain intuitive understanding on the matter. 31 55. The word 'standard ' could presum ably be replaced by 'pa tte rn ' w ithout loss of content to this sentence, since the im plied norm ativity of the terin 'a s tandard ' is made explicit by the phrase 'to be followed'. 32 Cf. G ilbert, 1989, on morality and convention, 392-396. 33 The same seem s to go for the f ac t, if il is a faet, that 1 prefer that others conform . Recall that we are eschew ing appeal to m oral aspects of the situation. Thus even if it could be ar- gued that it is morally required that one conform to existing preferences, ali else being equal, this w ould be considered extraneous to the preference condition itself. 34 Similar problem s arise for o ther social phenom ena. Cf. Gil- bert, 1990b on shared action, and 1987 and 1994 on group belief. 35 See espeeially Hart, 56-57. 36 Hart, 57. 37 56. 6 4 S o c i a l r u l e s a s p l u r a l s u b j e c t p h e n o m e n a 38 I believe that th is also ap p lies to H a rts m ore recent d iscussion of the a u th o rity o f a 'c o m m a n d e r' in H art, 1982. 39 Sonte vvould d isp u te the v iability o f any 'im perative th eo ry o f n o rm s ', in o th e r w o rd s , they vvould q u e s tio n the assu m p tion at issue in the text abovc. See Raz, 1975 , 51. 1 believe hovvever, that it can be m ade good. See sec tio n V (iii) belovv. 4 0 ibid. 41 Cf. G ilbert, 1989 C h ap te r 3, vvhere 1 argue th at to critieize an in tu itiv e doc trin e as m y ste rio u s', is n o th in g like the p resen ta tio n o f a knock-dovvn a rg u m e n t against it 42 1 c o n tin u e to exp lore the de ta ils of th is co n cep t. Som e lurth e r references are given in su b seq u e n t notes. 43 G ilbert, 405. 44 T his d iscu ssio n is inev itab ly som evvhat rough. For m y in itial qu ite leng thy in tro d u c tio n o f th is co n cep t see G ilbert, 1989, especially C h ap te rs 4 an d 7. I have e x p lo red th is idea lu r th e r in su b seq u e n t vvritings, m any of vvhich are co llected to g e th e r in G ilb ert, 1996. See also the In tro d u c tio n to th a t book. 45 W h at o f a father w ho says to h is d a u g h te r 'Fve dec id ed th at you'11 go to college' ? If the d a u g h te r is n o t th e re b y co m m itted , she does not (failing som e o th e r re lev an t c o m m itm en t on h e r p a rt) v iolate any co m m itm e n t by lailing to go to co l- lege. She does p reven t the fu lfillm ent of h e r fa th e rs c o m m it- m en t, b u t that is a n o th e r m atter. 46 1 c o n n ec t use of the p ro n o u n 'w e' an d jo in t co m m itm en t in G ilbert, 1989, C h ap te r 4. See also C h a p te r 7. 47 See G ilbert, 1987, 1989, C h a p te r 5, 1994a, 1994b, an d the In tro d u c tio n to 1996. I o rig ina lly vvrote of 'accep tin g as a body ' in th is con tex t. 'A ccep tin g ' is one sy n o n y m of 'believing ', an d I see n o obv io u s reason not to take it in that sense here. 4 8 First in G ilbert, 1989. 49 'O p e n ly ' here is a rough w ay of in d ica tin g the re levan t c o n - text S o m eth in g like 'co m m o n knovvledge' in the sense of Lewis (1 9 6 9 ) w o u ld seem to be a req u irem en t. See G ilbert, 1989, C h a p te r 4, on hovv p lu ral sub jec ts are form ed. 50 T his is by no m eans a f ui 1 d iscu ssio n of th is type o f case. For som e fu r th e r d iscussion of jo in t co m m itm en t in large g ro u p s see G ilbert, 1989, especially 2 1 2 -3 , 1993a, 1994, an d 1999. 51 See a lso G ilbert, 1993b, an d 1999. 52 Hart h im self, w ritin g on righ ts , ex p la in s o u r ta ik of righ ts in co n n ec tio n vvith p rom ises in term s of the p ro m isee 's h av ing 6 5 M a r g a r e t G i l b e r t the 'p o w er to re lease' the p rom iso r. T h u s o u r in tu itio n s in th is m atte r have som e affinity. 1 g ro u n d th is p o w er o f release tn an u n d e rly in g jo in t c o m m itm en t. H art d oes not. See H art, 1955. O n p ro m is in g a s a jo in t co m m itm e n t p h e n o m e n o n see G ilb ert, 1993c. 53 T his is no t the p lace to argue th is, b u t see m y articles G ilbert, 199 3 b and 1993c. 54 Cf. G ilbert, 1989 , 40 5 H ere m em b ers of P a re ' replaces 'one is'. 55 In G ilbert, 1989 , 1 s tip u la ted th a t T o accep t a p rin c ip le of the fo rm d o A in C ' is to su b jec t onese lf to lt in d iscu ssin g social co n v en tio n . In the su b seq u e n t (an d in ten d ed ly derivative ) d iscu ss io n of social ru les 1 w rote o f 'a ccep tm g that one is to d o A in C ' w h ich fo rm u la tio n p e rh ap s m akes it less c lear th a t th is is a m a tte r o f im p o s in g o r issu ing a req u irem en t. 56 S arto riu s , G avison . ed .,5 1 . argues th at 'co n tra ry to w h a t seem s to he a v irtua lly u n iv ersa l a ssu m p tio n am o n g p h ilo - so p h e rs , it m ak es perfect sense to sp eak o f a social ru le as ex is tin g in a c o m m u n ity ' in w h ich it is n o t generally confo rm ed to. In h is 'C o m m e n t' on S arto riu s , Jo h n F inn is agrees (G avison, ed ., 66 , 53n). T he issue is d iscussed at som e leng th by H an ina B en-M enachem in h e r 'C o m m e n t' on S arto riu s (G avison , ed ., 7 6 -8 0 ) . See also W oozley (1 9 6 7 ), 72. For a re la ted d iscu ssio n oi social co n v en tio n , in w hich 1 argue c o n - tra D avid Lewis th at regu lar co n fo rm ity is no t a re q u ire m e n t, see G ilbert (1 9 8 9 ) C h a p te r 6, an d e lsew here . 57 See G ilb ert, 1989 , C h a p te r 4 , w h ere there is a leng thy d is - c u ssio n of th e first perso n p lu ral p ro n o u n and its re la tio n sh ip to p lu ral su b jects. See also C h a p te r 7 on in ferences from p rem ises o f the fo rm 'We are d o in g s u c h -a n d -su c h '. 58 Section 11 59 II the p lural sub jec t acco u n t o f social ru les is co rrec t it exp la in s, in effect, how 'cu sto m ary ru les can be reg ard ed as im p era tiv es issued by a Society to itse lf ', th u s c o n s titu tin g a v ersion of the 'im perative theory oi n o rm s'. The q u o ted w o rd s in th is n o te are from Raz, 1975, 51 , w h o there assu m es the lalsity of th e im pera tiv e theory. T his acco u n t also sh o w s h ow it can be th a t, in W oozley's te rm s, '...a social rule is a ru le to th e ex ten t th a t it has the a u th o rity o f Society b e h in d it' (ib id ). 60 See G ilbert, 1989, especially C h a p te r 4. 61 Cf. Em ile D u rk h e im : T h is sui generis sy n thesis, w h ich c o n s tttu te s every Society', The Rules o f Sociological M ethod (orig . 1895). M any o th e rs tn igh t be q u o te d to the sam e elfect. 6 6 S o c i a l r u l e s a s p l u r a l s u b j e c t p h e n o m e n a 62 Cf. Hart, 11. 63 Ibid, 11-12. John Mackie makes a similar (skeptical) characterization of the everyday conception of the way m orality is grounded, w hich he sees as an obvious error. H ow can anything that is 'intrinsically action-guiding' be part of the 'furniture of the W orld? 64 This paper is a shorter version of Gilbert 1999c. The longer essay also appears in my forthcom ing book S o c ia l i ty a n d R e- sp o n s ib il ity : N e w E ssa ys in P lu ra l S u b je c t T h eo r v , (Lanham, Md.: Rowman and l.ittlefield, 2000. Many thanks to Heikki Ikä- heim o for help in preparing this version and to the convenors of the Jyväskylä Social Reality conlerence for their welcome invitation to participate. I am also grateful to classes and colloquium audiences who have heard and discussed various versions of this material at the University of C on- necticut, Princeton University, Kings College London, the London School of Economics, and Stirling University, and to Michael Cook and A rthur Kuflik for relevant discussion. Literature Bayles, Michael, H a r t s L ega l P h ilo so p h y : A n E x a m in a t io n , L a w a n d P h ilo s o p h y L ib r a r y 17 (D ordrecht; Kluwer, 1692) Ben-Menachem, Hanina, 'C om m ent', in Gavison, ed. (1987): 7680 . C otterrell, Roger, L a w 's C o m m u n i ty : L ega l T h e o r y in S o c io lo g ica l P e r s p e c tiv e (Oxford: C larendon Press, 1995). Dworkin, Ronald, T a k in g R ig h ts S e r io u s ly (C am bridge, Mass: H arvard University Press, 1977). F inn is.John , 'C om m ent', in Gavison, ed. (1987): 62-75. Gavison, Ruth, ed. Issues in C o n te m p o r a r y L ega l P h ilo so p h y : T h e In f lu e n c e o f H. L. A . H a r t (Oxford: C larendon Press, 1987). G ilbert, Margaret, 'M odeling Collective Belief', S y n th e s e (1987) voi 73, pp. 185-204. - , O n S o c ia l F a c ts (L ondon: R outledge, 1989; rep rin te d Princeton: Princeton University Press, 1992). - , 'Rationality, Coordination, and Convention ',S y n th e s e (1990a), voi.84 (1), pp. 1-21. Reprinted in Gilbert, (1996). - , 'W alking Together: A Paradigm atic Social Phenom enon', M id w e s t S tu d ie s in P h ilo so ph y , T h e P h ilo s o p h y o j th e H u m a n S c i67 M a r g a r e t G il b e r t e n c es (M innesota: University of M innesota Press, 1990b) Reprin ted in G ilbert, (1996). - , 'Group Membership and Political O bligation', M o n is t (1993a) voi. 76 (1), pp. 119-131. R eprinted in Gilbert, (1996). - , 'Agreements, Coercion, and O bligation, E th ics (1993b) voi. 103 (4), pp. 679-706. R eprinted with am endm ents in G il- bert, (1996). - , 'Is an Agreement an Exchange of Promises?', J o u r n a l o f P h i- lo so p h y (1993c) voi. 90 (12), pp. 627-649. Reprinted w ith some revisions in G ilbert, (1996). - , 'Remarks on collective belief', in S o c ia l iz in g E p is te m o lo g y , E Schmitt, ed., (Lanham , M d.:Rowman and Littlefield, 1994a) Reprinted w ith some revisions as 'More on collective belief' in G ilbert, (1996). - , 'D urkheim on Social Facts', in Pickering and Martins, eds., D e b a tin g D u r k h e im (London: Routledge, 1994b) - , L iv in g T o g e th er: R a tio n a lity , S o c ia lity , a n d O b lig a tio n (Lanham , Md.: Rovvman and Littlefield, 1996). - , 'Reconsidering the 'Actual C ontract' Theory of Political O b- ligation', E th ic s (1999a) voi. 109, pp. 226-260. Reprinted in Gilbert, (2000). - 'Obligation and Joint Co mini t me n t', U t i l i t a s ( 1 9 9 9 b ) voi. 11, pp. 143-163. Reprinted in G ilbert, (2000). - 'Social Rules: Some Problems for H art's Account, and An Alternative Proposal', L a w a n d P h ilo s o p h y (1999c) voi. 18, pp. 141-171. - S o c ia l i ty a n d R e s p o n s ib ili ty : N e w E ssa y s in P lu ra l S u b je c t T h eo ry . (Lanham , Md :Rowman and Littlefield, 2000). Hart, H. L. A., 'Are There any N atural Rights?', P h ilo so p h ic a l R e - v ie w (1955). Hart, H. L. A., T h e C o n c e p t o f L a w (O xlord: C larendon Press, 1961/1994). Hart, H. L. A., E ssa y s o n B e n th a m : S tu d ie s in J u r is p r u d e n c e a n d P o litic a l T h e o r y (Oxford: C larendon Press, 1982). Lewis, D avid, C o n v e n t io n : A P h i lo s o p h ic S t u d y (C am bridge: H arvard University Press, 1969). M acCorm ick, Neil, L ega l R e a so n in g a n d L ega l T h e o r y (Oxford; C larendon Press, 1978). M acCorm ick, Neil, H. L. A. H a r t (Stanford: Stanford University Press, 1981). Mackie, John , E th ics: I n v e n tm g R igh t a n d W ro n g (London: Penguin Books, 1977). 6 8 S o c i a l r u l e s a s p l u r a l s u b j e c t p h e n o m e n a Martin, Michael, T h e Legal P h i lo s o p h y o f H. L. A . H a r t : A C r i t i c a l A p p r a i s a l , (Philadelphia: Temple University Press, 1987). Postema, Gerald, 'C oordination and C onvention at the Foundations of Law', T h e J o u r n a l o f Lcgal S t u d ie s , 1 1 (1982). Raz, Joseph, P rac t ic a l R e a s o n a n d N o r m s , (London, H utchinson, 1975). Sartorius, Rolf, T h e Concept of Law', A r c h i v e s f o r P h i lo s o p h y o f L a w a n d S oc ia l P h i lo s o p h y 52 (1966). Sartorius, Rolf, 'Positivism and the Foundations of Legal Authority ' in Gavison, ed., (1987): 43-61. Woozley, A. D., T h e Existence of Rules', N o u s 1 (1967). 6 9 Eerik Lagerspetz ON THE EXISTENCE OF INSTITUTIONS I. The problem of institutions Term s w hich are useel to refer to institu tions are in som e sense like theoretical term s. The w ord 'sta te', for exam ple, does not refer to anyth ing directly observable . We say tha t 'the sta te' has som e p roperties, or even that it does som ething. But ali we can perceive are just people and their doings (p lus certain physical objects). 'sta te' seem s to have som eth ing in com m on w ith , say, 'e lectron' or 'eco-system ', vvhich are theoretical term s having a m eaning only as parts of Scientific theories. However, it is not only political scientists or legal theorists w ho use term s like 'sta te'. O rd inary people have to deal w ith the state alm ost daily, and w hen referring to it, they do not usually suppose the tru th oi any Scien- tific theory. As institutions form a pan of our everyday life, the tenns referring to them belong to our everyday vocabulary . N either can these term s be rem oved from our vocabulary . A scientist could claim that the extension of an established theoretical term is enrpty. There was no th ing corresponding to the term 'phlogiston'. But 'state' is clearly different. The state as an institution could perhaps w hither away, bu t it cannot be proved to be non-exislent. 70 O N THE EX1STENCE O F IN STITU TIO N S These lerms I will call them institutional terms - have another interesting property. Som ehow they are connec ted with no rm s and rules. W h e n we refer to som ething as 'a legislature', we suppose that its existence as a legislature is based on some norms which m ake it what it is: a legislature is not just a group of people having the habit of gathering together in a big building. These norms form a part of a larger normalive structure, and the actions of a legislature and even the fact that some actions are ascribed to it can be understood only by grasping the content oi this structure. Besides entities, some acts and properties seem to have this inherently normative nature, too. 'Cashinga cheque' or 'having a legal right' are understandable only in a pre-existing normative context. In this sense they have som ething in com m on with expressions like 'vvrongdoing ' or 'having a moral right'. These are meaningful only in a context of a p resupposed system of moral norms. But nevertheless, it seems that we can speak about institutions or institutional ly defined properties and acts w ithout committing ourselves to any substantial moral position. Hence, there seems to be som ething mysterious in the existence ot institutions. Heidegger, for example, was puzzled by it: A State is. By virtue of the fact that the State police arrest a suspect, or that so-and-so-m any typevvriters are clattering in a governm ent building, taking down the word of ministers and State secretaries? O r "is" the state in a conversation between the chancellor and the British foreign minister? The state is. But where it is being situated? Is it situated anywhere at ali? (Heidegger 1959, 35) Institutional terms seem to refer to real things. There are States and legal rights, lor example. By saying that 71 E e r i k L a g e r s p e t z there are such things we mean that they are not fictions or illusions. But they are conceptually connected with actions and interactions of individual people. A state can do something only if particular individuals do something . Statements about institutions and institulionally defined actions and properties are not statements about peoples mental States or physical movements. They have something to do with norms and rules which are not physical things. Nevertheless, it is possible to speak about institutions without committing oneself to the acceptance of a system oi norms or rules. To say that something is 'a state' is to express a descriptive and not a prescriptive judgement. Thus, there seems to he at least three different problems involved. First: how in- stitutions are related to individuals? Second: how institutional facts are related to natural facts? Three: how descriptive judgernents about institutional rules are re- lated to prescriptive judgernents? In his classic Speech A cts John Searle makes the distinction between 'brute' and 'institutional' lacts. The former are characterized in this way: One might say that they share the feature that the concepts which make up the knowledge are essentially physical, or in its dualistic version, either physi- cal or mental. The model for systematic knowledge of this kind is the natural Sciences, and the hasis for ali knovvledge is generally supposed to be ernpirical observation recording sense experiences. (Searle 1974 , 50 ) Institutional lacts are different: They are indeed lacts; but their existence, unlike the existence of brute facts, presupposes the existence of certain human institutions. (...) These 'institutions' 72 O n THE EX1STENCE O F IN ST1TU TIO N S are systems of constitutive rules. Every institutional laet is underlain by (a system of) rule(s) of the form 'X counts as Y in context C'. (Searle 1974, 51-2) This characterization oi institutional facts has inspired m any social and legal theorists. Most notably, MacCorm ick and YVeinberger (1986) base their institutional legal theory on it. Searles distinction betw een institu- tional and brute facts is, 1 think, sufficiently clear. In - stitutional facts: 'X cashes a cheque', 'Y has a legal r ight', makes a move in chess' are inherently dependen t on rules which exist in some community. But what kinci of fact, then, is the laet that these rules do exist in relevant communities? Obviously, a fact about the existence of a rule cannot be a brute laet in Searles sense: it is not a laet on the furniture oi the physical World, neither are the statements expressing it subjects of direct perceptual control. If Searle's classification is meant to be an exhaustive one, facts about rules must themselves be institutional facts. Therefore, they are inherently de- pendent on the existence of further rules: som eth ing is a rule only il there is a rule with the effect that it is counted as a rule. We are in an infinite regress. This m ight be called as the logical regress of rules. My solution to these problems is to develop a notion of non-bru te fact which is not inherently ru le -depend- ent. The basic idea behind the solution is the following : There are things which exist and facts which hold only if the relevant individuals believe that they exist or hold and act according to these beliefs. W hat we call institutions and institutional facts fall u n d e r this description . Descriptions of these things and facts are implicitly circular or self-referential, but the circle in question is not a vicious one. In the descriptions, institu- tional terms reappear only in the scopes of propositional operators describing the attitudes of relevant ind iv idu- als. Moreover, the existence of the related beliefs is only 73 E e r i k L a g e r s p e t z a necessary condition for the things being there. Here are sorne examples: W hat the international com m unity accepts as a State is a state. (van Maarseveen and van der Tung 1978, 234) Money is whatever is generally accepted in exchange. (D ornbusch and Fischer 1978, 209) A nation exists when a signilicant num ber of people in a com m unity consider themselves to form a nation, or behave as il they formed one. (Seton-Watson 1977, 5) A w ork of art is an artifact of a k ind created to he presented to an artworld public. (Dickie 1984, 80) A social class is a quasi-group oi people whose links are that they th ink they have similar interests, and w ho share com m on beliefs about the system ot so- cial class, their own position in that system, and simi- lar dispositions as to their behaviour approppria te to their position in that system. (Järvie 1972, 120) I am not claiming that these descriptions are necessarily correct: only that they are oi the right type (the fourth one becomes m ore transparent when we try to describe "an artvvorld public"). Ali the descriptions are functional in the sense that any ohjeet w hich can be a subject oi the relevant a tt i tudes and actions may satisfy them. There are functional limitations. Items which are ac- cepted as m oney m ust be d istinguishable , relatively durable, relatively scarce, not too difficult to use etc. But inside these constraints anything, inc lud ing cows, furs, shells, and bits of information in a co m p u te r can be used as money. And almost anything can w ork as an O n THE EX ISTEN CE O F IN ST IT U T IO N S artw ork . In tliis sense, these terms behave like, say, 'w eap o n \ Anything used or in tended to be used as a w eapon satisiies the term. But unlike the existence oi a w eapon, the existence of money, or a State, or art is a social or conventional and not a private matter. Private m oney is as impossible as private language. Money is som ethingexisting in a community. Neither is it enough that m em bers oi a com m unity just happen to believe that some objects are money: they m ust also knovv that this belief is generally shared by other members. Moreover , the attitudes must be shared by relevant individuals . And lastly, these attitudes must be related to actions . They must appear as (at least partly) reasons for the m em bers of the respective societies to do certain things. Il som ething is money, it is generally used as a means ot exchange and as a measure and store of value. The shared belief is a necessary but not a sufficient condition for the existence of institutional entities and properties . (Cf. Searle 1991, 339) The idea that institutions and institutional facts exist by the virtue of shared beliefs in their existence is called here conventionalism. Institutional terms are normally used in expressions w hich can be analysed in this conventionalist way. Such sta tem ents express conventional facts. This solves the puzzle created by Searles distinction . As my examples show, there is no th ing new in this idea. However, there m ight be some new elements in my attempt to explicate the idea in a more precise way and to connect it to o ther theories and issues. II. O n m utual beliefs The self-referential nature of conv en t iona l facts is not an anomaly, for there are things in the World which are capable for self-reference a n d for c ro ss-re fe rence . Propositional attitudes bel ieving, knowing, hop ing. 75 E e r i k L a g e r s p e t z fearing etc. have this capability. We can have beliefs about other peoples beliefs, while they have at the same time beliefs about our beliefs. This gives rise to the phenornenon called mutual or shared belief, or com - mon or mutual knowledge (the terminology is not well established). This phenornenon is especially visible in strategic situations. In the seventies, a Soviet diplomat, Juri Derj- abin, wrote several books with the pseudonym 'Juri Komissarov'. The purpose of the books was to influence on the Finnish foreign policy without openly intervening to it. In an interview, Mr. Keijo Korhonen, the former Under-Secretary of the State, recalled the debate aroused by 'Komissarovs' books: We knew there [in the Ministry of Foreign Affairs] quite well what the real issue was. We knew that Komissarov knew what the issue was. And we knew that Komissarov knew that we knew that he knew. (Helsingin S a n o m a t J9. 7. 1991) Obviously, reiterated beliefs of this type can be oi extreme practical importance in strategic situations, e.g. in diplomacy, economy or war. Uncertainty at some level may aflect the behaviour of the parties, and for this reason the parties not only engage in intelligence activities in order to find out each others beliefs, they also try to find methods to convince the other side. But reiterated beliefs appear also in less exciting contexts. flere is a nice list of possible examples: "Shaking hands is an everyday example, and so is rowing a boat, speaking and listening, driving down a highway, signalling a Morse code, walking in a crowrd oi people, meeting, and dancing". (Clark and Carlson 1982, 2) In ali the cases certain beliefs are normally shared by the participants . People become more conscious of these beliels when there is some room lor uncertainty, when it is not 76 O N THE EX1STENCE O F IN STITU TIO N S self-evident that ali participants oi an activity master the same rules oi language, traffic or dancing. Sociologists have coined phrases like "taking the role of the generalized other" (Mead), "interpenetration of perspectives " (Dewey) or "reciprocity of perspectives" (Schutz), but it seems that they ali are talking about situations in which we not only believe something but also expect others to have the same beliefs, including this belief about others' beliefs (Bach 1975, 191). Consider, for example, Schutz' analysis of the face-lo-face relationship : as 1 watch you, 1 shall see that you are oriented to me, that you are seeking the subjective meaning of my words, my actions, and what 1 have in mind insolar as you are concerned. And 1 will in turn take account oi the laet that you are thus oriented to me, and this vvill influence both my intentions with respect to you and how I act tovvard you. This again you will see, 1 will see that you have seen it, and so on. This interlocking of glances, this thousand-laceted mirroring of each other, is one of the unique features of the face-to-lace situation. (Schutz 1967, 170. See also the fascinating examples in Lacan 1966, 1 1-61, 197-213. ) The standard notion oi m u l u a l b e l i e j includes a series oi reiterated beliefs like (l)-(5) ascending to infinity: (MB) It is mutually believed in a population S that p iff (1) everyone in S believes that p; (2) everyone in S believes that everyone in S believes that p; and so on ad infinitum. This analysis supposes that luiman beings can have in77 E e r i k L a g e r s p e t z finite sets of beliefs in their minds. However, the Hil- man m ind seems to be an apparatus w ith a limited capacity . The defenders oi (MB) can argue in the following way. A lthough people can possess only a finite nu m b er oi propositions as contents oi their m inds at any one time, they can have an access to inlinite sets oi propositions: they can believe them in a dispositional or potential sense. For example, I could w ork out the tru th , and form the respective beliefs, of an infinite n u m b e r oi a r i thm etica l p roposit ions , if 1 only had enough time. Similarly, if 1 know the syntactical rules of English, I can in principle form an inlinite n um ber of judgem ents on the grammaticality of different expressions (on this defence, see Tuomela 1984, 210). Schutz may m ean som ething like that when he says that in a lace-to-face relationship the m irror images are not grasped rellectively bu t lived through (Schutz 1967, 170). Jane Heal (1978) has shown two llaws in this d e - fence. Firstly, we are interested in mutual beliefs that have an effect in interaction situations. These beliefs are able to guide peoples actions. A belief with, say 1030 iterations ("1 believe that she believes that 1 be- lieve...") cannot possibly occur in my practical reasoning under any circumstances (Fleal 1978, 119-20). The supposition that I "dispositionally" have this kind oi belief has no explanatory role whatsoever. Secondly, the analogy with arithmetic or syntax does not hold. 1 can "dispositionally" have an infinite n um ber of beliefs about the tru ths oi arithmetical propositions in the sense that 1 know the rules of arithm etic and can apply them recursively. But my beliefs about the beliefs of sonie o ther person are empirical. 1 cannot mechanically inter the contents of anybodys m ind (Heal 1978, 121) And in any case, it is not clear what it means to have dispositions which cannot actualize themselves in any physically possible circumstances. 7 8 ON THE EX1STENCE O F IN STITU TIO N S Another solution would simply he to cut off the regress . Thus, Kent Bach (1975, 192) proposes that only the first two iterations are needed; we get an adequate definition simply by deleting the a d i n f i n i tu m -clause from (MB). But this proposal seems to he a d hoc. It may be true that in the most common cases we have only beliefs of the second order; but even il beliefs oi a higher order are unusual, they certainly can exist as in the case of 'Komissarov' and the Finnish Ministry oi For- eign Atfairs. Clark and Carlson (1982) remark that in order to torni a mutual belief, people need not have separate pieces of evidence for ali component beliefs: they can make inductive interences from a single or a few pieces. in the acquisition of mutual beliefs, this claim is relevant . Messrs. Korhonen and Derjabin could not safely infer that beliefs were distributed symmetrically betvveen them, but normally we can make such inferences. VVe form new mutual beliefs by using the earlier ones as premises. As members of the human species, and as members of various human communities, we already believe that individuals being in an interaction with us have similar inductive, practical, linguistic, perceptual, etc. capacities, and that they also share with us some background beliefs and standards. From this we can inler that certain properties oi a situation are generally taken as evidence for certain beliefs, and therefore we can in such a situation relatively safely make inferences about other peoples beliels, including their beliefs about our beliefs. Thus, il 1 see you looking at me while I am sitting at a table, 1 have evidence that you know that there is a table, that you know that 1 know that there is a table and that you know that 1 know that you know that there is a table... Only under special circumstances (e. g. I recognize that you are heavily intoxicated) are there reasons not to make such an inlerence automatically . 79 E e r ik L a g e r s p e t z The question is how these beliefs should be represented in a formal definition. (See the discussions in Tuomela 1995, in Clark 1996, 93-5 and in Itkonen 1997, 54-9) 1 am not going to solve the problem here. But the phenomenon itself is fundamental. lii. Conventional facts Mutual beliefs, hovvever defined, form the basis oi what l have called conventional facts. We inay recall that there are certain facts which hold because relevant individuals believe that they hold. This belief must be mutual in the relevant group. Let us give an example. Suppose that the relevant population S consists of ali the inhabitants of a certain village S-ville. From time immemorial , the S-villeans have held their meetings under a tree growing near the village. It is a mutual belief among S-villeans that there is a meeting place under the tree. That there is a meeting-place under the tree is a c o n v e n t - ional f a c t in S. The definition of a conventional laet is the follovving: (CF) 'a is F' expresses a conventional fact itf it isä necessary and a sufficient condition for as being F that (1) it is a mutual belief (of at least the second order) in the relevant population S that a is F, and (2) in the situations of the relevant type, (1) is at least partly a reason for the members of S to perform actions which are meaningful because a is F For example, because the S-villeans believe that meet- ings are held under the tree, and because they believe 8 0 O n t h e e x i s t e n c e o f i n s t i t u t i o n s ihat the others believe it, too, they have a reason to go under the tree, provided that they want to attend the meetings. For those S-villeans vvanting to avoid the meetings it is a reason not to go there; for a woodcutter it is a reason not to cut that particular tree down, and so on. It is a peculiar property of conventional facts that propositions expressing them cannot be false if they are generally believed to be true and if this belief plays a relevant role in the behaviour of relevant persons. The sentence 'There is a meeting-place under the tree near S-vilie" cannot be true if the S-villeans do not believe it. But if they do, the sentence is true simply by virtue of the mutual belief. While any individual S-villean can be mistaken in his beliels (and act inappropriately), c o l l e c t i v e l y the S-villeans cannot be wrong in their be- lief: their meeting-place is there il they say so. Similarly , any individual speaker of a language can have mistaken beliefs about the grammaticality of a sentence. But the whole 1 inguistic community cannot collectively be mistaken. Beliefs about conventional facts are col- lectively non-corrigible.(cf. Itkonen 1974) This beliefdependency makes conventional facts quite extraordinary . Nevertheless, l cannot see any reason to deny that they are indeed facts. They form an important part oi our environment. The fact that shops close their doors at eight is a conventional fact in my society. As a laet, it is at least as reliable and as important for me as the natural fact that the darkness will fall at eight this time oi the year, and it equally constrains my actions. From my point oi view, it could as well be a law of nature. Here we may quote Berger and Luckmann: The institutions, as historical and objective factities, confront the individual as undeniable lacts. The in- stitutions are th e r e , external to him, whether he likes it or not. (...) Since institutions exist as external real8 1 E e r ik L a g e r s p e t z ity, ihe individual canno t unders tand them by introspection . He m ust 'go out' and learn about them, just as he must learn about nature. This remains true even though the social World, as hum anly produced reality , is potentially understandable in a way not possible in the case of the natural World. (...) The institutional world is objectivated hu m an activity, and so is every single institution. In o ther words, despite the objectivity that m arks the social World in hum an experience , tt does not thereby acquire an ontological status apart from the hu m an activity that produced it. (Berger and Luckm ann 1966, 57) Conventional facts are like natural facts in the sense that they are not d ep en d en t on the beliefs and actions of any particular individual. They are unlike natural facts in the sense that they are dependen t on the beliefs and actions oi ali relevant individuals. Berger and Luck- m ann speak about the paradox that hu m an beings are capable of p roducing a World they then experience as som ething o ther than a h u m a n product. The source oi this experienced paradox is that while we ali contribute to the existence of institutions, and in that sense they are our products, none of them can be my or your product. Consequently, there are acts which are possible for any one individual w ithou t being possible for ali indi- viduals. An individual may w ithdraw his deposit from a bank, or break the law, or the rules a game, w ithout causing the change or collapse of the institutions concerned . Such an action w ould not be possible for ali individuals acting as a collective. Conversely, there are acts which are possible only lor ali individuals, bu t not for any single individual. Changing, creating, maintaining or destroying institutions are examples of this. In institutional contexts, ali individuals, taken as a collec- tive, can be tree, while the possible actions oi any one 8 2 On t h e e x i s t e n c e o f i n s t i t u t i o n s individual are stricdy constrained. Only groups and com m unities can establish or change laws, monies or symbol systems. The laet that the options open for any individual are not the same as the options open for ali individuals is not a contingent matter; rather, it lollows conceptually Irom the nature of institutions. Three things should be noticed. First, by saying that som eth ing has merely a conventional existence, we do not imply that it is some kind of an illusion or ideological delusion. For example, by saying that 'nationality' is a conventional property, we do not ntean that it is therefore less real than some other properties; it is just different. Second, if som ething exists conventionally, it does not follovv that it can be changed at will. Some conventions are almost impossible to change. Third, there is no reason to suppose that conventional p roper- ties or entities are morally less relevant than 'natura l' properties and entities. For example, some authors have inferred that national differences are morally irrelevant, because they are merely 'constructed' or 'imagined' prop- erties. But there is no a priori reason to make this inlerence . (CF) says that conventional lacts exist by virtue of beliefs of "relevant populations". How is the relevancy to be determined? Intuitively, if the S-villeans generally believe that some place is their meeting-place, it is their meeting-place, while il the R-villeans believe that some other place is the meeting-place of S-villeans, that place is not necessarily a .meeting-place. But if we want to test the statement that some place is the meetingplace of the S-villeans, we have to determine which people are S-villeans and which are not. Populations relevant to the existence of conventional lacts can normally be identified by other conventional facts. 11, for example, som ething is a conventional fact in the Finnish Society, the relevant population is defined by the legal facts vvhich define the territory of 83 E e r i k L a g e r s p e t z Fin land and set the criteria of citizenship and these legal lacts are based on explicit conventions. In the case of S-ville the m atter may be m ore com plicated . Perhaps there are no explicit rules defining the borders of S-ville. There may be som e d isagreem ent on w h e th e r some person really is an S-villean or not. But there are crite- ria, how ever inexact, and these criteria exist because they are usecl by the S-villeans them selves. Thus, "relevant popu la tions" define them selves. H um an beings live and act in groups, and these groups families, clubs. neighbourhoods, com m unities, tribes, churches, parties , nations and alliances detine them selves by referring som e criteria of m em bersh ip . They grant citizen- ship rights, baptisize proselytes, and deliver m em ber cards. Q uite often, these criteria are recognized by outstders , by the State, for exam ple. Som etim es this o u t- side recognition is fundam ental. The statelets ("ban tu stans ") created by the w hite South African governm ent were not States because the in ternational com m unity d id not recognize them as States. IV Ontological worries One claim which has been m ade against the idea oi conventionality oi social lacts is that it is just an instance of conceptual relativism or subjectivism . For exam ple, Al- exander Peczenik argues against Tore Strömholm!? conventionalist theory oi law in the follovving way: Ström holm ... claims that the concept "valid law " does not refer to anything extant. The reason is that valid legal rules w ould disapper had people not thought about legal rules. However, cannot one say the same about material things? The fact that one now and here sees a forest depends not only on the forest but also on the eyes and m ind of the Observer. (...) Had people 84 On THE EX1STENCE O F 1NST1TUTIONS not interpreted the "data" as a forest, the forest vvould disappear, precisely as valid law. Ali concepts are conventional . Yet, it is absurd to claim that no concepts refer to anything extant. (Peczenik, 1989, 262) This criticism does not apply to my version of conventionalism . According to my version, the concept "valid law" refers to something extant, namely to conventional entities of certain kind. These entities do exist, in their own peculiar vvay. Nevertheless, it is true that they would necessarily disappear if people ceased to use the con- cept, and in this sense they are not like forests. The claim is not that our concepts are just conventionally agreed ways of classifying our perceptual vvorld. The claim is that the en tities them selves are created by conventions . The conventions are not about the use ot the language, but about the proper vvay to act. This claim is neutral in respect of the ontological realism-antirealism issue. A realist vvould say that there vvere forests before humans entered the scene, and, hopefully, there may be some forests leit vvhen they leave it. But there vvere no valid lavvs before the emergence of human societies. Another charge raised against conventionalism is that it seems to move in circles. A necessary condition for the existence of a conventional entity is, that it is believed to exist. Then, the term vvhich appears in a n a lys- andu tn also appears in a n a lysa n s. IsiVt this an obvious logical defect? It vvould be, if my purpose vvere to give a reductive definition oi the analysed notions ("Instead of saying T ' you may say 'Q &r R'."). But this is not the aim of my analysis. By analysing 'money' as something vvhich is believed to be money in the relevant community , 1 try to point otit a connection betvveen the use of the concept and a condition vvhich holds in respect vvith 'money' but not in respect vvith some other concepts (like 'forest'). While a circular or reflexive analysis of this kind does not give us the meaning of the vvord 85 E e r ik L a g e r s p e t z 'm o n ey ', it provides us som e In fo rmat ion w hich may help us to determine the extension of the concept (On a defence of circular analyses of this kind, see H um berstone 1997). The w ork of David-Hillel Ruben (1985) provides us an excellent example ot a criticism based on the circularity charge. At the same time, his analysis on the hasis ot w hat he calls "social p roperties" very similar to my notion of conventional facts (Ruben 1985, 114-15). Ruben claims that a reductive or "non-reductive illum inative" identilication oi social entities or social p rop- erties w ith individual entities or properties is impossible . This is an ontological thesis. He also claims that individualistic explanations elo not enjoy any priority over non-individualistic ones: this is his methodological thesis. W hy does Ruben th ink that irreducible social enti- ties exist? His example ot such an entity is France, lt seems that we ascribe several properties to the entity called 'France', and that there is no set ot individual facts and entities vvhich w ould be identical w ith that social entity Only the last of the candidates rejected by hitu, "reduction oi France to beliefs and atti tudes" (p. 30), is relevant here. His counter-argum ent is this: The set of relevant beliefs can be described only if the name 'France' itselt appear inside the scope of belief-operators. But it som ebody has an intelligible singular beliet about an entity, then the entity m ust exist. In that case the Identification ot France with beliefs about France becomes circular: A necessary condition for there to be persons with singular beliefs about France is that France exists. (...) Nor, for that matter could the identity be even non-reductive bu t illuminative, since the circularity is so obvious. (Ruben 1985, 35-6) 8 6 O n THE EX1STENCE O F IN STITU TIO N S H is a rg u m e n t in respec t to the iden tif ica tion of social p ro p e r t ie s w ith system s of beliefs is just the same: W h a te v e r the p roper t ie s are, if there is an intelligible beliel tha t x is P, the re m u s t be the p ro p e r ty oi be ing P (ibid. p. 1 24) Now, the p rob lem , a d m it te d by Ruben himself , is tha t the a r g u m e n t implies th a t fictional en tit ies like Santa Claus o r the alleged p lanet Vulcanus also exist (cf. Ruben 1985, 35). And the sam e ho lds w ith fictional p ro p e r - ties, like 'hav ing a m agical p o w e r \ An onto log ica l indi- v idualist is not likely to be m u c h afraid oi a theo ry vvhich c laim s tha t social entit ies or p roper t ie s have the sam e onto log ica l s ta tus as Santa C laus has. The basic disag ree m en t be tw een R uben and m e is, hovvever, n o t on the issue oi ind iv idualism , b u t on the issue of circularity . Ruben believes tha t the circularity, ob v io u s in my def in i t ion of conven tiona l (acts (CF), m a k es the analy- sis com ple te ly trivial, w hile I find it i l lum ina ting . For m e, the circularity is s im ply a m a tte r ot laet. A may believe tha t ce r ta in objects have the p ro p e r ty of b e in g money. She may be w rong in h e r beliel. But il h e r belief is g e n e ra l ly s h a re d , it is n e c e s sa r t ly co r re c t . Il the conventionalist ic analysis of m oney is generally accep ted in the com m unity , eve ry b o d y also believes tha t m o n e y is on ly m o n e y because it is the ob ject of a general belief that it is money. The analysis is circular, o r reflexive, because the th ings referred to in the ana lysans, beliefs, are them se lves reflexive. S u p p o se tha t we can analyse R u b e n s ex am ple entity, France, in this vvay. More exactly, su p p o se tha t the n a - t ion of France is identical ( reductive ly o r n o n re d u c t - ively) w ith a system of a t t i tudes c o n c e rn in g the n a t io n of F rance. This analysis is i l lum inative , for n u m e ro u s a t te m p ts to identify the n a t io n w ith som e racial, linguistic , cu l tu ra l , m etaphys ica l , etc. p roper t ie s o r en ti87 E e r ik L a g e r s p e t z ties are inconsistent with it. Indeed, il the conventionalist analysis is accepted, a substantial part oi the ideology of m odern nationalism has to be rejected. According to the conventionalist analysis, a nation com es into existence just w hen sufficiently many people, for some reason or other, do iorm the relevant shared attitudes. Thus, the analysis, in spite of its circularity, does help us to determ ine the extension of the concept. Notice that it does not follow from my analysis that nations like France are som ehow irreal or "merely fictional". They are as real as their constituting parts: beliefs, intentions and actions. Ruben also denies that social facts could be explained in terms of individual beliefs, a ttitudes and actions His argum ent is basically the same as before: In the case of rationally held true belief, we d o n 't explain the social lacts by m eans oi agents' beliefs about social facts: we explain the beliefs abou t social facts in part by the social lacts. (Ruben 1985, 168) Thus, he accuses methodological individualists oi reversing the correct order of explanation. In norm al cases, a laet is part of the explanation of the belief about the fact, not the o ther way round. 1 th ink that beliets about social facts can be partially explained by these lacts. Il we ask: "W hy does A believe that certain objects are money?", the natural answer seems to be: uThey are money in the Society in which she lives". This answer refers to a social laet which exists independently oi any particular beliefs abou t the fact. But how has A learned this fact? Weil, the others - B,C,D and so on have told her that the objects are money, and she has seen that B,C,D etc. behave in a way which becomes understandable by supposing that the objects are money. B,C,D etc. have formed their similar beliefs in the same way: by learning from others, A 8 8 On THE EX1STENCE O F 1NST1TUT10NS am ong them. The continual existence of the belief is partially explained by mutual reinforcement: the beliefs of individuals support each other. Every individual sees the behaviour oi ali others as a part of his environm ent \vith vvhich he or she has to cope. From ind iv idu- als' point of view, the fact is jus t there: others use certain objects as money. My thesis is that th is s i t u a t i o n i t s e l f constitutes the social fact the fact that the referred objects are m oney If we want a further explanation , il m ust be a historical one. How did the mem bers of the Society originally form their beliefs? The explanation is likely to be complex: there are the practical constraints (only some kinds of objects can iunction as m oney); there are psychological factors, inc lu d in g memories of the past, and conscious selection, vvhich make some conventions more likely to arise than o th - ers. These factors may be partially explained by a gen - eral theory of hu m an perception. But conventions are partially arbitrary: pure chance may play an im portant role in their formation. This theory is, indeed, circular. The mutual belief about the existence of a social fact is a k ind of self-fulfilling prophecy vvhich necessarily makes itself true. The only alternative seems to be that social facts exist independently and before the beliefs. That is implied by Rubens account. He does not, hovvever, teli us h o w they exist. Com pare again the status of social facts vvith the sta- tus of such facts as as being a vveapon. Il I take a stick vvith the in tention of using it as a vveapon, the stick is a vveapon. It is possible for me to form such an intention only because 1 have learned the concept of vveapon, or at least 1 have some kind of co rresponding idea in my niind. Somehovv, the idea or concept exists. But I d o n 't think that this implies any of the follovving positions: (a) that the concept exists in d ep enden tly of hum an m inds and activities, or (b) that even if it exists, that 8Q E e r ik L a g e r s p e t z particular object was a w eapon before 1 formed that intention, or (c) that my in tention-iorm ation should be explained by some kind of causal efiect the concept had on my mind. We cannot explain why a stick is a weapon by referring either to its physical properties or to ihe general concept. It is necessary to refer to my propositional attitudes: 1 neecl a w eapon and l believe that this particular stick is a suitable object to be used as a weapon. Thus, my propositional attitudes are used to explain an external laet and not the o ther way round There seems to be nothing odd in this. Conventional facts and properties are different mainly because they require mutual a ttitudes in order to be realized. I can make som ething a w eapon, b u t only wc can make som ething money, lf there is no collective conseiousness or World Spirit operating beh ind our backs, the laet that som ething becomes money has, ultimately , to be explained in terms of our individual actions and beliets. But, w hen constructing such an explanation , we are not trying to reduce the notion of money to som eth ing else. We are simply pointing out that money can exist only in this peculiar way. The question w hether this type oi analysis deserves the name 'invidualist' or not, is of secondary importance. V. Conventional facts and legal institutions W hat k inds oi facts are conventional in my sense? The paradigmatic cases 1 have in my m ind are (1) cases in which a is a rule or norm or practice in S and (2) cases in which a is F because there is a rule, norm or practice in S that a should be counted as F the case analysed by Searle. Both rules and instances or applicaiions ot rules can be treated as conventional facts. But two things should be noticed. Firstly, this is not in tended to be a linguistic analysis covering ali the possible meanings oi 9 0 O n THE EX1STENCE O F IN ST IT U T IO N S ihe words Tule' or 'n o rm '. For example, technical rules are not conventional: vve have a reason to tollow them even if they are not generally recognized or followed, if they are useful for our purposes. The norm s of personal or critical morality are not conventional either. If I believe that eating meat is wrong, I have a reason to follow the rule never to eat meat even if 1 am the only person having that conviction. The contrast with the rules of grammar, etiquette or (some parts oO law is obvious. (Theorists having a conventionalist view of morality may disagree here.) Similarily, a rule which is maintained by coercion only does not fit into the definition. A second im portan t point is that the notion oi conventional fact is not inherently tied to the existence oi rules. It is possible that some a is F simply because the relevant m utual belief is there: this cuts oli the regress appearing in Searles account. We can sometimes create new conventional (or, as Searle calls them, social) facts w ithout a reference to a pre-existing praclice . I can sometimes com m unicate m eanings without relying on rules vvhich would give my expressions or actions that meaning; l can give authoritative com m ands vvithout a rule authorizing me (as in W eber's case oi charismatic authority) an d so on. Some convention-creating acts can have their in tended effects simply be- cause they are believed to have these effects. Ultimately, every chain ot rules has to originate from conventioncreating acts. Institutions are systems of existing, interlocked rules. By giving a conventionalist analysis for rules, it is pos- sible to build up a theory oi such basic institutions as law, m oney or language which satisfies our pre-theoretical intuitions m entioned before. Notice that the term 'insti tu tion' is used in a wide sense. Usually, we do not call language an institution. Here, this use is adopted in order to indicate the com m on nature of rule-governed practices 1 follow the example of de Saussure w ho in 91 E e r ik L a g e r s p e t z his C o u r s de l in g u i s t iq u e g e n e r a l considered language (la n g u e ) as in s t i tu t ion sociale. A more restricted use of the term presupposes that 'social institutions' are only those practices which are related to a u t h o n t y a n d p o w e r . In the modern society, law is the most prominent among those institutions. There are several classifications of rules in the literature . SearleS (Kantian) distinction between regu la t ive and co n s i tu t ive rules is important because lt reminds us oi the laet that rules do not only regulate actions by prescribing and prohibiting: they also make it possible for us to do new things, by defining something as sornething . However, these classes are not mutually exclusive . It seems that every rule called "regulative" by Searle has a constitutive aspect (but not vice versal). A rule which forbids stealing creates new types of actions: stealing and refraining from stealing. Any regulative rule makes il possible to re-describe actions as instances oi following or breaking that rule. On the other hand, not ali constitutive rules have a regulative elfect. But many do. A constitutive rule of football says that players have to kick the ball, not to throw it with hands. If this rule is not generally observed in a game, the game in question is not lootball but a dilferent game. Nevertheless, an individual player can break the rule and suffer a penalty. We could either say that the general observance oi regulative rules constitutes the practice, or that the constitutive rules of the practice have a regulative elfect in individual cases. These descriptions are equivalent . My first analysis oi rules is the following: (R) R is a regulative rule in S if (1) the members of S generally comply with R; 9 2 O n THE EX1STENCE O F 1NST1TUTIONS (2) there is a m utual belief in S that R is a regulative rule in S,and (3) (2) is at least partly a reason for (1). (DR) R is a definition rule in S if (1) the m em bers of S generally count as as F s; (2) lt is a mutual belief in S that there is a definition rule R in S w hich de tines as as Fs, and (3) (2) is at least partly a reason for (1). These analyses cannot be the whole Story. Sometimes it is possible to say that there are rules, for example, legal rules, which are not generally followed by the m em - bers of a particular Society. Therelore (R) and (DR) give only sulficient conditions for the existence oi rules. Another sufficient condition for the existence oi rules is the following: (RR) R is a rule in S if there is a definition rule R' which defines R as a rule in S. (R), (DR) and (RR) are special eases oi my description ot conventional facts. (RR), hovvever, shows how the existence of a rule is not necessarily a conventional laet. A rule can exist because it is defined as a rule by an - o ther rule. But because the chain p ro d u ced by the reapplications oi (RR) cannot go on indefinitely, the ultimate rules which define o ther rules must exist conventionally . The conjunction of (R), (DR) and (RR) gives the necessary and sullicient conditions for som ethings being a conventionally existing rule in S. The point of the recursive clause (RR) is this. Social rules may form system s. An individual m em ber rule oi a rule-system need not exist by the virtue oi mutual belief concerning its existence consider some more esoteric 93 E e r i k L a g e r s p e t z parts of law which are not known by a small circle of legal specialists. It is enough if a rule belongs to a chain or net of rules which ultimately can be tracecl back to mies which exist in the relevant community as conventional facts. To put it in more familiar terms, the rules exist it they are recognized by a "rule (or rules) of recognition " which is itself efficacious. The similarity between this view and that oi H.T.A. Hart in his classic The Concept o f Law is obvious. My view, however, provides an answer to the charge of circularity made against Harts view of law. In Harts view, the rule of recognition exists as a social practice among the officials. Against this, N. E. Simmonds has claimed thai the questions about the validity ot the ultimate norm s of a system cannot be merely about the beliefs and actions of oflicials, for if the question about the nature of a practice were a a question about what official thought then the content oi their thought could nol be a thought about the nature of the practice. (Simmonds 1984, 104) This is another instance of the circularity charge discussect above. 11 my vievv is correct, the circle is not a vicious one; the content of the ultimate rules can be analysed partly in terms of olficials' (and of other citizens ') thoughts about these rules. This account oi rules leaves many questions unanswered . For example, the question oi how the belief "R is a rule for the com m unity S" can work as a reason for the members oi that com m unity to comply with the rule? The fact that R is recognized as a rule is a necessary condition for conscious (and not merely epiphenomenal ) compliance, but it is not a sulficient condi- tion for that. There is no simple answer to the question, for rules allect on individuals' practical reasoning in different ways. But one essential role of rules in human lite is to help individual to coordinate their actions. In 94 On THE EX1STENCE O F 1N ST1TUT10N S interaction situations, the consequences ot actions taken by me (including their symbolic consequences) are often dependent on the actions taken by you, and vice versa. Indeed, according to Jurgen Habermas, every so- cial interaction that comes without the exercise of manifest violence can be understood as a solmion to the problem of coordinating the action plans of several actors (Haberm as 1996, 17). In many cases, especially in faceto -face situations, we can solve the problem vvithout any institutionalized rules, by relying on our shared beliefs. To use David H um e's favorite example, "two men puli the oars of a boat by com m on convention for com - m on interest, vvithout any promise or contrac t". Each m an prefers to row, if and only if the o ther rovvs; the problem is to lind a com m on rhy thm of rovving, and that can be solved vvithout any explicite rule, or even vvithout discussion. Com pare this vvith ano ther time-vvorn example: the traffic rules. Here vve have institutionalized rules. Even here, the main interest of every one is to follovv a pattern follovved by others; the exact content of the rules is less im portan t than the existence of a general pattern . But several factors affect here: (i) the large num ber of actors, (ii) the difficulty to com m unicate and, (iii) the risks involved in the case the coordination fails. YVhat is needed is a system of rules vvhich are knovvn by ali, and knovvn to be knovvn by ali. Therefore, there should be a single authoritative source for the rules, so that in order to learn the conten t of the rules, vve have to consult the lavv-book and not, say, the local custom. Traffic rules are a particularly good example of the coordinative functions of lavv. Hovvever, large fragments of lavv are not directly related to coordination. Rather, their function is to prolect interests or values, or to regulate conflicts ot interests or values. But even those parts of lavv are indirectly related to coordination. Hume explains the existence of property rights in the same vvay: 95 E e r ik L a g e r s p e t z 1 observe that it will be in my interest to leave another in the possession oi his goods, provided that he will act in the same m an n e r vvith regard to me. He is sensible of a like interest in the regulation oi his conduct. W hen this co m m o n sense is mutually expressed and is know n to bo th , it produces a suitable resolution and behaviour. A nd this may properly enough be called a convention or agreement betwixt us, though without an in terposition of a promise; since the actions of each of us have a reference to those oi the other, and are perform ed upon the supposition that som ething is to be performed on the other part. (...) In like m anner are languages gradually established by h u m a n conventions, w ithout any promise. In like m anner do gold and silver become the com m on measures of exchange, and are esteemed sufficient paym ent for what is of a hundered times their value. (Hum e 1739/1948, 60-1) YVhat is most important, the conventional existence of the rules of recognition which define the sources oi other legal rules makes posstble for courts and olficials to coordinate their decisions concerning the application and enforcement of rules. Here, the "relevant populat ion" is the sub-com m unity oi officials i.e. of those w ho are recognized as olficials by the entire com m unity . This not exclude the possibility that there are several , partly com peting rules oi recognition. For example , national legislation and the regulations created by international organizations (eg. by the EU) may be partly incompatible, and there may be no superrule determining their mutual relations. The systemic nature of rules is always a m atter oi degree. But, contrary to what Hobbes said, the existence of several, partly com peting authorities need not make our lile "nasty, brutish, and short". For, as Leibniz rem arked to Hobbes, people may well live un d e r a divided power, if they "hold some 9 6 O n THE EX1STENCE O F IN STITU TIO N S niidelle road, so as not to commit everything to hazard by their obstinacy" (Leibniz 1677/1981, 119). The plurality oi rules may make coordination more difficult, but not impossible. The idea oi convention may help us to develop a more detailed theory oi the nature of soc ia l p o w e r and a u th o r i ty . The notion of convention used here differs trom the notion developed by David Lewis in his classical work C o n v en tio n (1969). There, one of the main properties of conventions is that for every conventional solmion to a coordination problem there exists a possible alternative or alternatives which would solve the problem equally well, and the agents involved tn the problem are virtually indifferent between the alterna- tive Solutions. They go along with the existing conven- tions just because they happen to be there. This irnplies that their interests are basically identical. And then, of course, there is no power dimension in their interactions . But consider such practices as using dollar as the international currency, or using English as the lin g u a fr a n c a in lndia or Africa. These practices solve real co- ordination problems: there is an obvious need in both cases to find a shared practice, and the existence oi some shared practice is, for indvidual agents, more important than the particular nature of the chosen practice. But certainly these practices are not neutral. They are products oi pre-existing povver-relations, and they tend to reproduce the very sarne relations VI. Conclusion: institutions and freedom As Berger and Luckmann remark, the 'objective' nature oi institutions is a potential source of alienation. Insti- tutions, although built on human conventions, tend to appear us as natural lacts which are outside any human control a phenomenon already noticed by Marx and 97 E e r ik L a g e r s p e t z Durkheim . This follows from ihe fact thai institutions are produced , not by your or by me, bu t by us. They can be changed only by collective action. W h e n collective action is impossibie, institutions may look as impenetrable and immovable as physical laws or entities. This gives rise to the phenom enon called as "ideology" by Marx. People tend to see the institutional reality as a part of the eternal order of things. VVhen such a belief becomes mutually shared, it inakes institutional changes more dillicult, a lthough it does not, oi course, make them as parts of the eternal order. Ideological belief s are no t selt-grounding; they are collective tllusions, Itke the belief in the existence of the Emperohs new cloths. Nevertheless, institutions are also potential sources of h u m a n freedom, in three dilferent ways. The s tan d - ard liberal argument, also present tn H um e s account, is that institutions extend our freedom by protecting us against the intrusions oi others. But there are two other, less obvious connections between institutions and h u - m an freedom. First, by facilitating coordination, insti- tu tions make us possible to act in concert. Second, in - stitutional rules create normative powers: by virtue oi institutional rules, we may promise and make contracts, vote and marry, accept com m itm ents and step into in - stitutional roles. Because of institutions, we are able to do things w hich cannot be done outside institutional contexts. The im portance of the last point becomes more visible w hen we consider the "negative" conception oi political freedom, in tro d u ced by Jerem y Bentham and William Paley and made popular by sir Isatah Berlin in his famous inaugural lecture T h e Two Concepts oi Lib- erty'. According to this conception, politically relevant liberty is simply the absence of sanction-backed regulative rules. (Hence, Robinson Crusoe on his isle possesses the largest possible am ount oi this lorm oi free9 8 O n THE EX1STENCE OF INSTITUTIONS dotn.) Bentham, Paley, and Berlin made the explicit contrasi betvveen this negative "liberal" conception and the more classical "republican" conception that defined politically relevant liberty as possession of certain powers (e.g. voting rights). Elsewhere (Lagerspetz 1998), 1 have tried to argue that the standard negative view is too limited even for political liberals. For it neglects the positive contribution of constitutive institutional rules. To make the matter more clear, consider a person who is put under a guardianship. He m unable to make valid contracts, to make a will, to vote, or marry. This is not so because he is under some specific reg u la tiv e rules. He may well draft and sign texts entitled as "My Last Will and Testament " or "A Contract of Sales" without being subjected to a punishment. fle may rise his hand vvhen votes are counted, or say "1 do" at the presence of a person dressed as a priest. He may be Iree to perform the samc sets of physical movements as his fellow citizens. The difference is that these movements do not constitute any new institutional facts. They are not counted. It seems plausible to say that the ward is less tree than his fellow citizens less free in an ordinary and politically rel- evant sense. He is less (ree because he does not possess certain powers which can be conferred to him only by constitutive (or definition-) rules. Certainly, the freedom to make contracts is the most liberal theme one can imagine. It it cannot be defined in terms ot "negative" liberty, there seems to be no foundation in the claim that the Benthamite negative con- ception ot liberty is the liberal conception. This example shows that the kind oi metaphysics ot institutions 1 am defending may also have some relevance in the normative political theory. 99 E e r ik L a g e r s p e t z Literature Bach, K. (1975) 'Analytical Social Philosophy Basic C oncepts'. J o u r n a l f o r T h e o r y o f S o c ia l B e h a v i o u r 5., pp. 189-214. Berger P and T. Luckm ann (1966) T h e S o c ia l C o n s t r u c t i o n o f Re- ality. A t rea t ise in t h e so c io log y oj k n o w le d g e . D oubleday &r Co.. New York. Berlin, 1 (1969) F o u r E s s a y s on L ib e r t y . Oxford University Press. O xford . Clark, H. H. (1996) U s in g La n g u a g e . Cambridge University Press. Cambridge. Clark H. H. and T.B. Carlson (1982) 'Speech Acts and H earer's Beliefs' in N.V Smith ( e d . ) M u t u a l K n o w le d g e . Academic Press, London, 1-36. Dickie, G. (1984) T h e A r t Circle. A T h e o r y o f A r t . Haven, New York. D ornbusch, R. and S. Fischer (1978) M a c r o e c o n o m i c s . McGrawHill , New York. Haberm as, J. (1996) B e t w e e n F ac ts a n d N o r m s . Tr. W Rehg. M1T Press, Cam bridge (Mass.). Hart, H.L.A (1961) T h e C o n c e p t o j L a w . Oxford University Press, Oxford. H eal.J . (1978) 'C om m on Knowledge', P h i lo s o p h ic a l Q u a r t e r l y 28., 1 16-31. Heidegger, M. (1959) An I n t r o d u c t i o n to M e t a p h y s i c s . Tr. R. Manheim. Yale University Press, New Haven. H um berstone, l.L. (1997) 'Two Types of C ircularity', P h i lo s o p h y a n d P h e n o m e n o l o g ic a l R e s e a rc h 57., pp. 249-80. H um e, D. (1739/1948) 'A Treatise oi H um an N ature'. In H.D. Aiken (ed.) H u m e s M o r a l a n d P o l i t ica l P h i lo s o p h y . Haefner Press, New York. Itkonen, L. (1974) Li n g u is t ic s a n d Me ta s c i e n c e . Studia philosophica turkuensia 2., Turku. Itkonen, E. (1997) 'The Social O ntology of Linguistic M eaning', S u o m e n k ie l i t ie te e l l i s e n y h d i s t y k s e n v u o s i k i r j a / T h c Y c a r b o o k of the L in g u is t ic A s s o c ia t io n in F i n la n d . , pp. 49-80. Janne, I. C. (1972) C o n c e p t s a n d Society. Routledge & Kegan Paul, London. Lacan, J. (1966) Ecr i ts . 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(1985) T h e M e ta p h y s ic s o j th e S o c ia l W o r ld . Routledge &r Kegan Paul, London. de Saussure, E (1916/19ö2)C ours d e l in g u is t iq u e g e n e r a le . Payot, Paris. Schutz, A. (1967) T h e P h c n o m e n o lo g y o f th e S o c ia l W o rld . Tr. G. Walsh and W Lehnert. N orth western University Press. Searle, J. (1974) S p e e c h A c ts . C am bride University Press, C am - bridge. Searle, J. (1991) 'Intentionalistic Explanations in the Social Sci- ences'. P h ilo so p h y o f S o c ia l S c ie n c e s 2 1 .,p p . 332-44. Seton-W atson, H. (1977) N a tio n s a n d S ta te s . Westwood Press, Boulder. Sim monds, N. E. (1984) ' The Nature of Propositions of Law', R e c h ts th e o r ie 15., pp. 96-108. Tuomela, R. (1984) A T h c o r y o f S o c ia l A c t io n . Reidel, Dordrecht. Tuomela, R. (1995) T h e lm p o r ta n c e o f Us. A p h ilo s o p h ic a l s tu d y o f b a s ic so c ia l n o tio n s . Stanlord University Press, Stanford. 1 0 1 Raimo Tuomela COLLECTIVE ACCEPTANCE AND SOCIAL REALITY I. The Collective Acceptance account of collective sociality ~any social and collective properties and notions are m an-m ade in a collective sense. There are two im portant features of the collective creation oi some central aspects oi the social World that have previously been em phasized in the literature by such authors as Barnes (1983), B loor(1996), Kusch (1997), and Searle (1995). The first feature is that of the performative character oi many social notions. The second is the reflexive nature of many social concepts. My account adds to this list a third feature, the collective availability or "forgroupness " of collective social items. 1 will argue in this paper that sociality is in m any cases created through collective acceptance. 1 have elsewhere created a "Collective A cceptance" account oi sociality and social institutions (see Tuomela and Balzer, 1999). The first section of the present paper will present this account. The second and third section introduce some new features to the account. The fourth section discusses social institutions. Section V makes some gen- eral philosophical com m ents on the scope of the ac- count. The sixth section applies the account to the prob102 COLLECTIVE ACCEPTANCE AND SOCIAL REAL1TY lem of the ontology of the social vvorltl. On a general level, the basic problem to be discussecl in this paper is what collective acceptance can achieve concerning ontological matters. 1 w ill try to show that it can serve to make relevant parts of the social World ohjeetive and ontologically real in a sense not relving merely on "epistemic objectivity" (in Searle's, 1995 sense). According to the Collective Acceptance account oi (collective) sociallty developed in Tuomela and Balzer (1999) certain entities get their social status by being collectively created. For example, many kincls ot physical entities for instance, squirrel fur in the case of medieval F inns-can " in principle" become money. This occurs through the members of the collective in question accepting it as money. As soon as they cease to collectively accept it as money and to mutually believe that it is money, squirrel fur loses its status and function as money We must distinguish between a) collectively creating an idea, b) collectively holding and maintaining it, and finally c) collectively realizing it or carrying it out. Col- lective acceptance relates to a) and b) in the first place. 1 argue that those collective social reasons, viz. reasons for which collective social actions in general are performed , are Special kinds oi "we-attitudes" (cl. below and Tuomela, 1995, Chapter 1, Tuomela and BonnevierTuomela , 1997).1 Collective acceptance basically is C o r n - ing to hold and holding a relevant we-attitude. The weattitudes (social reasons) that are needed for collective acceptance basically belongeither to the intention-lamily or to the belief-family of attitudes. My account concentrates on intentional achievement actions, but il must be remembered that neither coming to hold a we-attitude nor holding a we-attitude need be intentional ac- tions. Thus, in principle, an agent can acquire a belief that, for instance, there is a tree in front of him, w ithout h is reflection and intentional action. Thus, an agent 1 0 3 R a im o T u o m e la can accept something as correct w ithout having intentionally arrived at this kind of acceptance State. 1 w ill belovv concentrate on acceptance beliefs, which are states of acceptance oi a content (sentence, proposi- tion) as correct (or true), while mere believing is a State in which the agent experiences something as true or real (ci. Cohen, 1992, Tuomela, 1999). Typically such a state oi acceptance is produced by the mental action of acceptance and is, furthermore, based on the agents reflection of what is being accepted and oiten also on relevant evidential considerations e.g. other group members' acceptances. Analogously it can be claimed that individual acceptance typically although not always is intentiona!. However, collective acceptance need not be collectively intentional in the strong sense of being based on a jo int intention to accept the participants may tnstead be connected in terms of their mutual beliefs (recall the cases oi collective acceptance w ithout even an individual intention present). Acceptances as states (viz., as states normally resulting from acceptance action) are basically dispositions to act in accordance w ith the contents of those states, these contents serving as reasons for those actions. Whatever else those reasons may include, intentions and beliefs of a relevant k ind must always be involved (this is a generally accepted iact about reasons of ac- tion). Thus the account oi acceptance in the sense of holding a we-attitude oi a relevant k ind can concen- trate on intentions and beliefs: intentions and beliels must accompany wants, wishes, fears, and whatever can motivate action, simply because the concept oi action is based on the idea of doing something at w ill under the guidance oi beliefs. In general, 1 argue that the question of how much intentionality and oi vvhich kind (cf. I-mode versus we-mode intentionality, correctness versus falsity of relevant beliefs) there must be in each particular case is to be decided on the hasis of the collec104 C O L L E C T IV E ACCEPTA NCE AND SO CIA L REAL1TY tive outcome what kinds of activities result from collective acceptance and the maintenance of what has thus been accepted. Trivially, people must be able to do with money what we generally do with it and the same goes for schools, churches, governments and so on. Consider collective action performed with some (even if perhaps not full) collective intentionality, viz. collect- ive social action performed for the same shared social reason. For instance, in a group there might be a (weak) we-goal to oppose a tax increase; viz. this is the group members' goal, and they believe that the others share this goal and believe that this is mutually believed among them. Collective acceptance in this kind oi situation can be construed as acceptance either in the sense oi conative commitment to a sentence or proposition s (intention to make s true or to uphold s, e.g. s= The tax increase is to be prevented) or doxastic commitment to s (the "acceptance" belief that s is true, e.g. s= The earth is liat). Collective acceptance here is a) (weak) "we-acceptance ", viz. each person comes to accept s, believes that the others accept s, and also believes that there is a mutual belief about the participants' acceptance of s. This we-acceptance can be either "private" acceptance (acceptance in the 1-mode, viz. the group members "privately " accept s) or acceptance in the we-mode (viz. the group members together accept s and are collectively committed to s). In both cases acceptance involves reflective avvareness not only concerning vvhat one oneself accepts but also vvhat the others accept. In the latter , we-mode case also a collective commitment to s must be involved, and we get the minimal sense oi accepting f o r th e g r o u p (and the involved "we-mode" togetherness vvhich intersubjectively involves the group). Furthermore, vvithout the "vve-mode" mutual belief there is not enough intersubjectivity and collective commitment for the application of the phrase Tor the group' and for saying that the participants are attempting to 105 R a i m o T u o m e l a see to it collectively that the accepted content will become satisfied or as the case may be remain satisfied . Acceptance "for the g ro u p " with collective comm itm ent can be viewed in this context as coextensive with acceptance in the w e-m ode. Thus, "We accept that s is correctly assertable for us in ou r group-related activities " is truth-equivalent w ith "We accept s in the wem ode". We can also say that w e-m ode acceptance consists of collective acceptance lor the group with collec- tive com m itm ent concern ing what has been accepted (see Section lii for further discussion). YVhen accepting som ething lor the group the participants are collec- tively com m itted to a system oi norm s, which in gen- eral requires that the m em bers pertorm cerrain actions (e.g. interences) and permits the performance of some other actions. In general there will be social s a n c l io n s - approval, disapproval to Control the group mem bers activities supposedly governed by their normative col- lective com m itm ent. Stronger forms of collective acceptance "for the group" that may be m entioned here are b) norm -based , institutional acceptance and c) plan-based or agreementbased collective acceptance. An example of b) is the collective acceptance that d ru n k driving is w rong and punishable, that anniversaries in a marriage ought to be celebrated, and perhaps also in some collective that squirrel fur counts as money. The last example is based on the social norm that everyone in the collective ought to treat squirrel fur as money. An example of c), planbased or agreement-based collective acceptance, is the group m em bers' joint decision to eleet a certain person as their leader. In general, acceptance for a group entails m utual beliel in the acceptance, at least in "egalitarian " groups and in groups in which the normative structure oi the group does not affect collective aeceptance .2 1 0 6 CoLLH C TlV E ACCEPTANCE A N D SOCIAL REAL1TY II. Collective constructivist sociality The follovving general thesis of sociality in a collective and "constructivist" sense can now be proposed (cf. Tuomela and Balzer, 1999, and recall note 2): Collec t ive A c c e p ta n c e T hesis (C A T ): A sentence s is so - cial in a primary constructivist sense in a group G il and only il the (ollowing is true tor group G: a) the members of group G collectively accept s, and b) they collectively accept s if and only if s is correctly assertable. In the analysans a) is the assumption of the categorical collective acceptance oi s while clause b) is a partial characterization of the ktnd of collective acceptance that is needed here. In logical terms, ( C A T * ) s is social in a primary constructivist sense in G if and only if Forgroup(CA(G,s) &r (CA(G,s) <-> s)). Here the 'operator' CA represents the collective acceptance of s as true or as correctly assertable by G for G. Forgroup(G,s) means that s is correctly assertable for the group, G, in question (see Tuomela and Balzer, 1999, for discussion). (In the case oi descriptive sentences correct assertability can be regarded as truth in a correspondence sense.) Acceptance for the group in general, viz. in the case of intentional collective acceptance, entails m utual belief concern ing the acceptance. CA must be a performative achievement-expressing notion and 'acceptance' is general enough to cover both the creation and upholding oi s and has achievement conceptually built into it. In standard cases collective acceptance involving collective commitment to what has been accepted can be required. Hovvever, norm obeying on the hasis of private commitment seems possible in some cases, although not perhaps in a full-blown 107 R aimo T uomela sense; see the discussion in Chapter 6 of Tuomela, 1998. Let me clarify correct assertability. First note that we can derive from (CAT) and soine logical assumptions eoncerning FG that FG(s) (see Tuomela and Balzer, 1999). We can interpret FG(s) as "group G takes s to be correctly assertable in G-contexts" or "G treats s as correctly assertable in G-contexts", where G-contexts are contexts related to the activities of the group members of G when they act as g r o u p m e m b e r s as opposed to privately. This, when we go to the individual or member-level, entails "s is collectively available or premissible in G-contexts". Premissibility is the idea of taking s to be correct or to be assumable in the context in question. But a group member does not really have to believe it is true. (Nevertheless , premissibility in G can be viewed as a notion in the belief-family, construed in a wide sense.) To accept something as right or correctly assertable entails that one has the right to use the sentence as a premiss. In some cases, e.g. when a "flatearther" is asked about the shape of the earth, the m ember ought to use a certain premiss (in the example, "The earth is liat"). Using it as premiss means accepting it as a premiss in one's practical inference or using it as the hasis of one's action. We can now ask whether one can accept s and not-s. The answer is that a rational group member cannot do it. Note, however, that one can to some extern rationally accept s c/ua a m e m b e r of G and accept not-s as a p r iv a te p er so n . My present account does not rely on the notion of correspondence truth as an analytical notion. The basic notion herc is the normative notion of a groups treating something as cor- rectly assertable. Hovvever, correctly assertable descr ip t ive sentences can be regarded as true in an objective, "picturing"sense (cf. Sellars, 1968, Tuomela, 1985). Consider now briefly the notion of collective acceptance as characterized by (C A T * ) : Forgroup(CA(G,s) <- > s). First consider the implication from left to right: 1 08 C O L L E C T IV E ACCEPTANCE AND SO CIA L REAL1TY Forgroup(CA(G,s) -> s) (Performativity) This is true simply on the basis oi the notion of collective acceptance, which is an achievement notion relative to the groups "intentional horizon." VVhat the group accepts is correctly assertable or true for the group members. Next consider the converse implication: Forgroup(s -> CA(G,s)) (Reflexivity) This gives a Central and often emphasized conceptual "mark of the social": For s to be correctly assertable within G it must be collectively accepted in G. The truth of s (or G makes reference to s itself within the sentence CA(G,s). This condition will be discussed in Section V YVe can say roughly that a sentence is collective-social in a d erived sense it it is not "constructively" social in the above primary sense but prcsupposcs for its truth (for the group) that there are some relevant true (for the group) sentences, which are collective-social in the primary sense. For instance, sentences using 'power', 'unemployment', or 'wealth' are at least in some cases candidates for constructively social sentences in the derived sense. Latent or unilateral social influence are social features of the social world that would not and correctly so be cases of even derivatively social fea- tures in the constructivist sense (not even when many agents are concerned). The same holds lor "naturally" social emotions such as envy often is (cf. Tom envies John lor the latters new car). Furthermore, many shared we-attitudes are not socially constructed either (for in- stance, shared lear may be a "natural" or "non-constructed " social phenomenon). There is also a kind of "shadowy side" in collective acceptance in our present sense. A group can collec- tively reject (CR) ideas. For instance, let s = Human beings are a product of natural evolution. A group might reject s. I submit that this entails not only that it does not accept s but that it accepts the negation oi s, viz. -s. 109 R a im o T u o m e la In o ther words, I claim that collective rejection is a subspecies of non-acceptance by w hich the group is able conceptually to construct notions. We do not, however, need to adopt a Special technical notion of collective rejection for this job, for my present thesis reduces the task to collective acceptance, viz. CR(G,s) entails CA(G,s ). It can he m entioned here that there is also another way of dealing with "negative items", a lthough these two ways are com plem en ta ry and do not com pete . Brielly, a group may (and here must, il rational) accept also that it rejects s and accepts -s. Thus, in symbols, CA(G, GR(G,s)) and CA(G, CA(G,-s)) would be true in this case. For instance, a group may accept e.g. that the though t that hu m an beings are a product of natural evolution is rejectable (this is oi the k ind CA(CR(G,s))). In my account collective acceptance has as one of its intuitive source ideas that it concerns w hat the group members are licensed to write dow n and use as premises. In my example, CR(G,s) is accordingly taken to entail that they may use -s as a premise, and ought to use it when the genesis ot the hum an race is the ohjeet of inquiry. My som ew hat tentative thesis is that the family oi intention concepts (including agreements and com m itments ) and acceptance beliefs (doxastic takings) are the basic a ttitudes needed to sustain (CAT), bu t a detailed defense is not possible here. 111. More on collective acceptance 1 have above required of collective acceptance that, in the context of (CAT), it be for the group and that involve collective com m itm ent concerning w hat has been collectively accepted. 1 will now consider collective ac- ceptance (CA) som ewhat more generally in view of the "variables" forgroupness (FG) and collective com m it1 1 0 C O L L E C T IV E ACCEPTA N CE AND SOCIAL REAL1TY m ent (CoCom). We have seen that collective acceptance is either a) a collective social action performed for a shared social reason or b) the state of having accepted som ething and being therefore disposed to perform relevant collective actions. Case a) is exempltfied by the case of the group m em bers m aking the agreement to accept a sentence s (e.g. s = We ahvays walk on the right han d side of the road in our village). Making the agreement is a collec- tive social action which is performed for the shared rea- son (purpose) of achieving consensus on some question (e.g. concerning traffic rules) and specifically on w h e the r to accept s or som ething else. The agreement (and shared intention) to accept s results in the accept- ance of s indeed there is no conceptual room here for agreeing to accept s and not accepting s. Acceptance of s thus is the conceptually inbuilt "result event" of the agreem ent-m aking in question. The participants' continued acceptance of the agreement entails that they will have the in tention to continue to hold onto s. The intentions to enter agreement making, to accept s, and to continue to hold onto s need not be full blown joint intentions although they must be shared intentions with the same content. Once a sentence, s, has been collectively accepted, collective acceptance (CA) in the "rather full" sense requ ired in the present account (which need not be in a w e-m ode sense) can be regarded as a disposition to perform relevant collective social actions (viz. actions perform ed for the same social reason) concern ing the accepted content, say s. The social reason here will be to collectively satisfy or uphold (as the case may be) the sentence in question. The participants may be ei- ther collectively or privately com m itted to this kind of activity. They must in this context mutually believe that they have collectively accepted s and understand what such collective acceptance is (and thus that they are 1 1 1 R a i m o T u o m e l a com m itted to s). As their social reason involves not only the idea of satisfying or upho ld ing s but also the idea of doing this in part because of the others also do it, we can see that collective acceptance involves reflection of social expectations. The participants must be aware of. or believe, not only that they themselves have accepted s but also that the others have similarly accepted s and in fact that the others also believe similarly of the o th - ers (and so on higher up in the beliel hierarchy, at least in principle). The fuller cases thus m ust involve at least loop beliefs: each person should believe som ething not only about the o thers' beliefs bu t also about their b e - liefs concerning his belief and perhaps more. It can be pointed out, that for the above to be correct, CA must be understood as a proper collective social ac- tion, viz. collective action performed for a shared social reason (in the sense exactly characterized in Tuomela and Bonnevier-Tuomela, 1997). In the literature on collec- tive action especially in the literature dealing with the public goods problem collective action is often under- stood only in a weak aggregate sense falling short of being proper collective social action. In this aggregate sense a collective action consists of people performing the same type oi action, perhaps mutually believing that they are doing so. 11 only this much were meant by collective action, it would not by itsell rationally entail mutual b e - lief (be there mutual belief or not), forgroupness, nor collective commitment. It can be noted that there could even be aggregate collective action lor the group, viz. FG(CA(G,s)), w i th o u t the ra tionally necessary accompaniment of mutual belief. This is because CA would be private (individual-mode acceptance), and w hether or not mutual beliel actually happens to be present would not change the matter. C onsider briefly collective com m itm ent in its weakest , we-attitude sense. In the case of two persons, you and me, if we are collectively com m itted to a proposi1 1 2 COLLECTIVE ACCEPTANCE AND SOCIAL REALITY tion s, the following must be true: I take myself to be committcd to s and w ill act accordingly, in part because 1 believe that I ought to do what it takes to make or keep s correctly assertable for the group; and I believe that you are also sim ilarly committed to s and w ill act accordingly, in part because of your sim ilar personal (not necessarily social) normative thoughts; furthermore , we botli believe that ali this is m utually believed by us. Here s could be "The earth is flat" , and we are talking about your and my commitment to maintaining its correct assertability. In present weak sense of collective commitment my account goes in terms of shared we-beliel only. Thus Communication is not required and still less is explicit agreement making at stake. (Note that private mode collective acceptance need not involve collective commitment even in this weak sense.) The present notion oi collective commitment can be strengthened, on the one hand, by requiring the nor- mative aspect to rely on an intersubjective norm or obligation tovvards s. On the other hand, it can be strengthened by requiring the participants to th ink that the others ought to perlorm their "parts" of the collec- tive commitment to uphold s and that they, being com- mitted, indeed do perlorm them. This latter addition can be called a social commitment or a social aspect of the collective commitment to s. In ali, collective commit- ment in this strongest sense involves i) action expectation (especially for the others), ii) intersubjective ("objective") normative basis lor commitment, and iii) social expectation (entitlement to expect that the oth- ers w ill act appropriately). Let me now systematically consider CA, FG, and CoCorn in their various combinations. We may th ink of a Venn diagram concerned w ith the domain oi ali things that are in a groups concern, something the group actually or dispositionally is concerned vvith. Let us call R a im o T u o m e l a this dom ain of items (sentences) the g ro u p 's intentiional horizon (IH). We can also say, equivalently, that the elements of 1H are items that the group is concerned with in its propositional attitudes, its thoughts, so to speak. W ithin IH we may now consider the following contents : (+-)CA(G,s) Gr (+-) FG(G,s) Gr (+-)Cocom(G,s). Here the + and signs obviously mean, respectively, inclusion and exclusion related to the sets in question. Let us now consider the subclasses oi 1H in obvious shorthand notation: 1. CA & FG Gr CoCom 2. CA Sr FG Gr -CoCom 3 C.A & -FG Gr CoCom 4. CA Gr -FG Gr -CoCom 5. -CA Gr FG & CoCom 6. -CA Gr FG Gr -CoCom 7. -CA Gr -FG Gr CoCom 8. -CA Gr -FG Gr -CoCom O ur discussion in Section II has shown that collective acceptance in the lullest sense m ust be of the k ind 1, viz. it must be collective acceptance tor the g roup and il must involve collective com m itm en t (but recall the m ention of some marginal cases with private com m it- ments only an d see the discussion oi case 2 below). This is in laet what we mean by w e-m ode collective acceptance. (This is not mere stipulation, bu t accords with how 1 have analyzed the w e-m ode in C hap ter 2 of Tuomela, 1998.) However, the Collective Acceptance account can exceptionally tolerate also case 2 (while still requiring private com m itm ent; cl. belovv). Civen our earlier discussion, 1 propose the thesis that w e-m odeness (WM) is tru th-equivalent to collective ac- ceptance with collective com m itm ent for the group, viz. i) W M(G,s) <-> CA(G,s) Gr FG(G,s) Gr CoCom (G,s). T h e s e c o n d c o n j u n c t c o u l d a lso h a v e b e e n CA(FG(G,s)), but in the present context the latter en 1 1 4 C O L L E C T IV E A CCEPTA N CE AND SOCIAL REAL1TY tails the former and conversely. The lollowing can, furthermore, be proposed as a vai id truth: ii) CoCom(G,s) -> FG(G,s) Clause ii) says that collective c o m m itm en t in the context of collective acceptance entails collective acceptance for the group. ii) can be argued for by saying that a g roup cannot be collectively com m itted to s unless everybody som ehow takes part in seeing to it that s will be or is kept correctly assertable and that, accordingly , w hen s is satislied or maintained (as the case may be) it is collectively available for ali g roup mem bers and FG(G, s) is true. It oi course immediately follows from i) and ii) that lii) W M (G,s) <-> CA(G,s) &r CoCom(G,s) is true as well and of course accords w ith what was earlier said about the we~mode. Given this, we can now consider m ore generally which of the cases l)-8) are rationally possible? Case 1 am oun ts to we-m ode collective acceptance and does not require further com m ents here. Case 2 is possible. There can be cases of collective acceptance for the group involving only private com m itm ents. Suppose thus that it is m utually believed in a private, tacit sense by the Finns that they are the toughest people in the \vorld. This k ind of collective acceptance based on m utual pri- vate belief would only entail private com m itm ents but could still be for the group and even be a reason for collective social action. Case 3 is not possible, as CoCom entails FG. Case 4 is possible: There might be collec- tive private acceptance of statement such as that emeralds are green without this being for the group and without its being collectively com m itted . O r consider another example directly concerned with action. The group m em bers might ali accept to go picking m ushroom s and accept it as true that everybody vvill go, w ithout accepting ali this for the group. There might be mutual 115 R a im o T u o m e l a kncnvledge about ihis in the group, but the group members w ould conipete for the m ushroom s. This can be taken as collective acceptance in the I-mode without collective com m itm ent to the accepted activity and without (orgroupness. Case 5 I tind conceptually impossible at least in the case of "egalitarian" groups (my sole concern here). There can be no collective com m itm ent w ithout people collectively accepting the sentence they are collectively com m itted to, as com m itm ent entails having an intention to act appropriately; and that is what collective acceptance here am ounts to. Thus collective com m itm ent to the proposition that the earth is flat entails the collective acceptance of the use tor ali group m embers ot the premiss "The earth is flat" (although the converse is not generally true). How about case 6? Private acceptance by on ly a few people in the group of a sentence s w ould satisly this case. Il is certainly possible . More strongly, the group m ight collectively reject s, and this is also an instance oi 6. As to 7. it violates ii) and is impossible also for the reason that there can be no collective com m itm ent w ithout collective acceptance recall the discussion oi case 5. Case 8 is possible. ltems which are the groups concern (although they are not for the group) bu t which it has not actively considered or has actively considered but not accepted belong here. E.g. the statement that titanium is a light metal might be given as an example. In ali, we have found that of the com binatory possibilities l)-8) only CA«Sr-FG«SrCocom (case 3), -CA «Sr FG «Sr CoCom (case 5), and -CA «Sr -FG «Sr CoCom (case 7) are not "conceptual-rationally" possible, if we take collective acceptance (CA) to be collective social action or disposition to collective social action in the discussed, relatively precise sense oi Tuomela and BonnevierTuomela (1997). Although the Collective Acceptance account is typically concerned w ith case 1 (and occasionally with 2), the consideration oi the o ther cases C O L L E C T IV E ACCEFTANCE AND SOCIAL REALITY has both justified that laet and has throvvn some further light on the notions of CA, FG, and CoCom. IV Social institutions Let us now consider social institutions from the point of view oi the Collective Acceptance model. The phrase 'so- cial institution' has been used in very many different ways, as also dictionaries witness. 1 submit that institutions presuppose some kind oi collective acceptance of a way oi acting in group contexts. Thus institutions fundamentally relate to practices (recurrent activity) and to social collectives or groups. In the present general case institutionalization then amounts to the creation, by the group m embers via their collective acceptance, of specilic repeatable ways ot acting relative to group tasks and functions . For instance, in some tribes certain ritualized ways oi doing things (cf. rain dance) are institutional and cer- tain roles (e.g. hunter) are institutional in this sense. I claim that in its most general and "rock bo ttom " sense institutional (viz. institutionalized) acting is acting and functioning as a group membcr (as opposed to acting as a private person), viz. in a certain group position or role (be the positions differentiated or not). Acting as a group m em ber accordingly necessarily involves a group context , viz. acting in relation to some group tasks, purposes, or functions. In the groups view there is a right and a wrong way oi so acting, and thus we have at least a weak element oi normativity here. Assuming collective commitment to the instituted item, we can here equivalently speak of institutional acting in a group as acting in the we-mode rather than in the I-mode. (Hovvever, institu- tional acting vvithout collective com m itm ent and thus acting in the I-mode also seems possible, given the existence oi an institutional context.) It a g roup has structure in the sense oi division of 117 R a im o T u o m e l a labor and tasks we must be concerned with different kinds of group positions and roles and in this sense with institutions in a n a r r o w sense. In such cases acting as a group m ember am ounts to acting in a certain normgoverned position or role. Acting as a group member means that one acts in a position and is in principle replaceable by some other individual (group member) oi the right kind (say teacher, priest, carpenter). In other words, the notion of group m em ber abstracts from specilic individual features of persons and makes for the possibility of change of members without a change of the group into a different one. In the full-blown "standard" case, covering e.g. the general institutions of money, language and law, as well as such specilic (viz. narrow) institutions as the school and the banking system, institutional acting is a social practice governed by a social norm accompanied by sanctions (cl. Tuomela, 1995, Chapter 10, and the references given there). This serves to create the collective outcome that the group as a whole functions "as meant", viz. so that it tends to fulfil its basic tasks and functions. In terms oi the analysis (CAT) we get the following account of social institutions in the "standard" sense (see Tuomela and Balzer, 1999, Tuomela, 1995, Chap- ter 10, lor a longer discussion): (51) A generic sentence s expresses a so c ia l i n s t i t u t i o n in a primary sense in a collective G if and only il 1) s expresses or entails a social norm or system of interconnected social norms governing a social prac- tice or a system of interconnected practices; 2) the members of G collectively accept s for G with collective commitment and with the understanding that collective acceptance for the group entails and is entailed by the correct assertability oi s. (This collective acceptance guarantees that the social norm expressed or entailed by s is in lorce.) This account is stated in general terms, but is meant 1 1 8 COLLEC.T1VE A CCEPTA N CE AND SO CIA L REAL1TY to capture the view that a social institution in the s tand- ard sense involves one or more recurrently performed social practices, SP, an d a "task-right system", TR, in the sense of Tuomela, 1995, Chapters 1, 10. Thus the sentence s is supposed to express the couple (SR TR), in colloquial terms that there is a usually position-involving social practice or system of in terconnected so- cial practices governed by (in terconnected and interlocking ) social no rm s (ru le -no rm s or p ro p e r social norm s in the sense oi Tuomela, 1995, Chapter 1). Clause 2) entails that the social norm s in question must be in force. Roughly, they are in force if obeyed to a suitable extent and are also suitably sanctioned (Tuomela, 1995, C hapter 1). Due to the assum ption of collective acceptance lor the group we get the result that a social institu- tion is for the use o! the social g roup in question. Consider a village in which certain people help one oi the villagers concerning a certain task. This is, so to speak, helping on an interpersonal level bu t not yet at the group level. But il a working-bee, viz. a meeting fo rcom bined w ork an d am u sem en t (especially of ne ighbors and friends), is organized, the helping in question is a grouplevel affair, one that involves the villagers as a group (or, possibly, a certain subgroup of that group). Collec- tive acceptance with collective com m itm ent (and accom panying social sanctions) is required in the kind of full-blown standard case we are discussing here, but we may have to tolerate instilutional cases in which there are social norms to which the target persons are only privately committed, e.g. subconscious norms con- cerning Communication and body position in face-toface interaction. Searle (1995) emphasizes that social inslitutions are based on a collective ly created social status of something . This seems to be right in the case of standard social institutions, although in the case oi weaker so- cial institutions this idea may not always be involved 119 R a im o T u o m e la (ci. below). I w ould like to say that the k ind of new understanding and new "social m ean ing" involved in a social institution, as com pared with the case where the social institution did not exist, is due to two factors. First, we have a system of mteraction which need not have existed before; and, secondly, there is the holistic or group-level element involved in "forgroupness" and collective com m itm ent, bo th involved in collective acceptance . These elements did not exist before and especially they account for the new status of the social interaction structure involved. Let me still emphasize that the present account in the general case involves differentiated positions and roles and hence interlocking social norms (and, although 1 do not above stress it, interconnected institutions). This element oi systemicity makes activity governed by a single social norm, it there such be, problematic il regarded as an institution. For instance, norrns concerned with dressing (e.g. lifting one's hat) might be regarded as a case in point. We are hesitant in regardingcases like, for instance, greeting by lifting one's hat or removing one's hat when entering a building as social institutions because they do not relate to a system oi group-positions and to other activities. It seems that borderline cases like these can oiten be treated as minimal institutions in the sense to be discussed below. In any case, cases oi mere normobedience are not as such social institutions even in that minimal sense (as collective com m itm ent and forgroupness may be missing).3 Social institutions in a derivative sense can be characterized analogously with how derived sociality was based on primary sociality above. In them the sentence s is social in the derivative (rather than in the primary) constructivist sense. A norm -based social power-relation could be cited as an example of a social institution in the derived sense. (Cf. Lagerspetz, 1995, for a somewhat similar approach, which, however, relies on m u1 2 0 C O L L E C T IV E A CCEPTA N CE AND SOCIAL REAL1TY tual belief ra the r than collective accep tance .) As has becom e clear by now, the re are m a n y k in d s of social inst itu tions. T h u s (SO only gives a basic idea con - c e rn in g no rm ative social inst i tu t ions. lt is th u s no t info rm ative c o n c e rn in g su c h specific in s t i tu t io n s as are organizations (such as a bus iness com pany, or a church). O n the o th e r h a n d , one can in a c co rd an c e w ith the above idea oi in s t i tu t ions as collectively ac cep ted repea ted ac ting in a g ro u p c o n te x t also c o n s id e r w ea k e r k in d s ot social insti tu tions . T hus , even m ere collective accep tance w ith collective c o m m itm e n t to w ard s a n o n - n o rm at iv e p ropos i t ion s a lready m akes s inst i tu t ional in a uminimal" sense. S u ppose th u s tha t som e peop le collectively accept as o n e of the ir fu n d am e n ta l p rinci- ples tha t the su n is th e ir god. S u p p o s in g tha t they are collectively c o m m it te d to th is p r inc ip le a n d are also d isp o sed to sanction each o th e r in re levant ways we are a lready dea ling w ith a k in d oi ins t i tu t iona l social fact. It seem s that we sh o u ld still requ ire tha t there be som e rec u rren t activity (e.g. w o rs h ip p in g every m o r n in g at sunr ise ) to con f irm tha t the peop le really are co l lec- tively c o m m it te d to the ir belief. Given th is we are here dea ling w ith a m in im al k in d of social in s t i tu t io n even if there w ere no specific social n o rm to engage in su c h practices over a n d above the p e r s o n s ' (possib le) private n o rm at ive th o u g h ts th a t they o u g h t to collectively u p h o ld the ir basic p r incip le . A c o u p le of rem arks are due. First, the p resen t m o d e l of social inst itu tions is of cou rse h ighly general an d only d iachron ic . It is, hovvever, possib le to give m ore con- ten t to it and to m ake it d y n a m ic (see Tuomela, 1995, Balzer a n d Tuomela, 1999). The result is a deta iled m a- them atica l m ode l that I have called a "social m il l". It show s h o w social in s t i tu t ions can be m a in ta in e d a n d revised via the a g e n ts ' collective practices. VVhile the general idea is familiar from prev ious co n tex ts (cf. e.g. G id d e n s s theo ry of s t ru c tu ra t io n ) , the re is no ac co u n t 1 2 1 R a im o T uo m e la w orking seriously with "jo in tness" notions and collective acceptance as presented above and in o ther works by myself and my collaborators. My second rem ark on social institutions concerns Searles (1995) theory of the construction of social reality . His account basically shares m any features w ith my above account bu t deals w ith on ly with a strong notion of institution. His Central formula for collective accept- ance in the context of social institutions is "We accept that S has pow er (S does A)" (Searle, 1995, p. 104, 111). This is unders tood to be implicitly entailed by my central acceptance sentence "We collectively accept s" (or CA(G,s)), but w hat is explicitly accepted in the present case is the sentence s, e.g. s = squirrel fur is money, and not the underly ing powers, righis and duties , concerning the possessors of squirrel lurs and other mem bers of the group. Searles account operates in terms of constitutive mies, but it seems hard to fit p roper social norm s such as conventions into this account. Nevertheless, there can be institutional facts also in their case. Furtherm ore, there can be institutional facts in cases where no c o n - stitutive norm s seem available. Thus the case of the people collectively accepting (with collective com m itment ) the view that the Sun is their god woulcl not represent an institution in his account, for at least seemingly no new status lunction with deontic powers is created. (I discuss these points in Tuomela, 1999.) V On the scope of the Collective Acceptance account W hat is the precise class of sentences s to w hich (CAT) is claimed to apply? Underlying my Collective Accept- ance model is the general assum ption that in each c o n - text oi application one can distinguish between sen1 2 2 C O L L E C T IV E ACCEPTA N CE AND SO CIA L REAL1TY tences whose objective correct assertability collectively taken is entirely up to the m em bers oi the group (or up to their conceptual activities, especially to what they on metaphysical grounds can accept as true) and sentences whose tru th is at least in part up to nature, to the way the World is, and thus in part dependen t on the causal processes occurring in the external World. The sentence "Squirrel fur is money" belongs to the first class of sentences and ''Stars determ ine our fate" to the second . Thus, the first sentence will be correctly assertable for the group due to collective acceptance and no exter- nal, objective tru th standard applies to it. The second sentence can only be correctly assertable for the group as a k ind of stereotypical beliet. Il cannot be true in the standard objective sense, as it is not up to the group mem bers to determine w hether stars indeed determine our fate. The present point gives an argum ent for the em ploym ent of the "forgroupness" concept. Note that in principle any sentence can be collectively accepted as correctly assertable for the group, but a central assum ption here is that far from ali sentences thus ac- cepted coun t as objectively true to the extent one can even speak of objective correspondence tru th here. In o ther worcls, both class one and class two sentences can be collectively accepted as correctly assertable for a group, bu t only in the case of the latter k inds of sen- tences can the question of objective correspondence tru th meaningfully be raised. Also note that while o b - jectively false sentences collectively accepted for the group can be called "groupjective" (to coin a neologism) they need not subjective in the standard sense, for their tru th or correct assertability typically does not strictly depend on a single subjects (group m em bers) accept- ance. Generally speaking, social concepts and sentences are reflexive in the following sense. A collective-social sentence u s inga putatively social predicate (e.g. 'money,' 123 R a i m o T u o m e l a 'leader,' or 'marriage') does not apply to real things (such as certain pieces of paper or squirrel furs in the case of 'm oney') unless collectively accepted and, so to speak, validated for that task. Let us consider m oney ("liat m oney", in the econom ists sense) as an example. The predicate 'm oney' does not refer to itselt b u t to coins, dollar notes, squirrel furs, and so on. Reference here means that 'm oney' correctly applies to those things. The loose taik about reflexivity in this context therefore should be understood as being about presupposi- tion-stating sentences such as "Money is not m oney unless collectively accepted to be m o n e y " This is not a matter oi what phrase to use bu t w hat the concept of m oney is. This concept is expressed by what the user of the predicate 'm oney' m English is entitled to say and, especially, extralinguistically do (and what he may be obhgated to do). The concept of money thus connects vvith some deontic povvers and obligations collectively bestowed upon those w ho use the predicate 'm oney' and who belong to the collective in question. The discussed presupposition (viz. that money is not money unless collectively accepted to be money) is central precisely because of the follovving assum ed fact: It is u p to the mem bers of the collective and nobody else -to bestovv those extralinguistic deontic powers upon its members. This contrasts with sentences involving only physical predicates like 'tree' or 'm ass.' In their case it is not up to the m em bers of the collective to do more than stipulate how to use certain linguistic phrases and, e.g. what word to use for trees. It can thus be said that the alleged reflexivity of col- lective and social concepts strictly speaking is not directly concerned with the entities that the concepts (predicates) apply to. Rather, we may say that a collective -social concept is conceptually reflexive or "self-conceptual " in the sense that it presupposes itself; and this can be explicated in terms of correct assertability for 124 C O L L E C T IV E ACCEPTANCE AND SO CIA L REALITY the group as follows. W hen for a social preclicate 'q ' and a singular term 'a' the sentence 'q (a )' is correctly assertable (for the group) this p resupposes the collective acceptance of the sentence lq (a)' and thns of a as q in the group. Thus, il 'q(xV expresses tha t 'x 1 denotes an item of m oney and if 'a ' denotes a piece of squirrel fur, then the sentence lq (a)' can be correctly assertable (for the group) only if speaking in the m aterial rnode squirrel furs are, in fact, collectively accepted as m oney or "m ade" m oney in the group. A sim ilar point can be m ade about m eanings of w ords, leaders, m arriages, property rights, and so on. It is not easy to say precisely to w hich kinds of things the Collective Acceptance account appi ies. The earlier discussion in this paper has show n some central areas that certainly fall w ithin the scope of "w hat is up to us to determ ine as true or correctly assertable". Thus social institutions in formal, informal, and belief-based senses qualify. Here e.g. various kinds of social positions and roles are included and so are social rules and norm s. Accordingly, law is included here, and a case can be made for morality to be included as well (cf. Scanlon, 1998).3 M athem atics is another area to w hich the Collective Ac- ceptance account seems basically applicable. I cannot here try to argue for these kinds of broad claims, bu t rather present them as conjectures. 1 wish to em phasize that the Collective Acceptance account in no way entails that the propositions or sentences to w hich it applies are arbitrarily made correctly assertable by the w him s of the m em bers of a collective. Thus, for instance, in the case of law and morality surely some objective standards not depending on collective acceptance can com e to play a role. The final say in these m atters, however, is argued to be what the collective, perhaps given a num ber of highly restrictive (objective and other) constraints, accepts as correctly assertable. 1 25 Ra im o T uo m ela VI. On the ontology of the social world The Collective Accepiance account basically says that the parts of the social World it applies to are collectively c o n s t ru c te d a n d m a n -m a d e . H ow ever, th is n e e d s qualifications. Some remarks on the matter will be made below (in part drawing from Tuomela and Balzer, 1997). One can argue that reality is criterially connected to causality in the sense that an entity cannot be real unless capable of occurring in singular causal inquirerindependen t contexts (viz. in claims oi the form C (f,f) , C s tanding for causation and f, f' being lacts related to the entity in question). Here inquirerindependence is independencc of an inquirebs m ind or, p u t somev/hat differently, the "ideally rational" Scientific co m m u n ity s "m in d " (attitudes, views). Roughly speaking, the in - quirer-independence of causation here can be understood in the sense of causation in a World similar to ours but in which there are no (mind-possessing) inquirers . (Cf. Tuomela, 1985, Chapters 4-7, for a discussion of this and the appearance reality d istinction from the point of view of Scientific realism.) Note that our present criterion for a m ind-independent w orld "out there" of course allows that there are creatures possessing m inds (e.g. intentions and beliefs) "out the re" and thus m ind -dependen t things in that sense. lt also allows tha t the th ings ou t there be desc r ib ab le an d conceptualizable in various different ways. In addition to the two "levels" of a) inquirerindependent reality out there and b) the (ideal) Scientific co m m u n ity s view or, put differently, the standpoin t of the ideal best-exp laining theory, we must also deal with c) a g ro u p s (any groups, large or small) point of view. From a g roups point of view the social institutions and o the r collec- tively constructed and upheld things in that g roup are collectively m ind -dependen t in the sense of being de1 2 6 C O L L E C T IV E A CCEPTA NCE AND SOCIAL REAL1TY pendent on the group's acceptance and thus its attitudes. Such g roup-dependen t things can nevertheless be said to be "socially real" in the group (viz. intersubjectively real and belong to the groups posited "public space"), and they are also real in the sense oi being independent of an external inquirers or best-explaining theory's point of view. Criterion a) of independence may be argued to be coextensive with b), b u t one may still w ant to keep these criteria conceptually distinct. It can be noted that although group-dependen t items can be regarded as as "groupjective", viz. as "generically" m in d -d ep en d en t (viz. dependen t on the "g roup's m ind", as it were, and hence group members' minds) an item can still be groupdependen t w ithout in fact being dependen t on any particular m em bers m ind, because collective acceptance is compatible with such "exceptions". Thus ontological groupjectivity is distinct from ontological subjectivity. Let me emphasize that g roup-dependen t things are still objectively investigatable in the sense that they are inqu irer-independent (see below). This is the case even il we, as a thought experiment, let the group grow and become the class oi actual and possible hum an beings. The inqu ire rs reflective stance towards an external, inqu irer-independent world, which now includes also the class ot ali hum an beings, is still at least conceptually and metaphysically possible at least if we are allowed to assume (Scientific) realism. One underlying reason for this is that the m ethod of investigation used, viz. the Scientific m ethod, is idealized and normative and thus transcends the limitations of hum an beings. One can, nevertheless, refuse to be a realist and argue that there are things in the World, which are inquirer -dependent. Consider, for instance, "qualia" such as the perceived sound of the English h o rn or an ache in one's tooth. They are subjective and m ind-depend- ent in the sense of being dependen t on the listenebs 127 R a im o T u o m ela m ind, bu t yet they are extensionally descnbable or recordable (even if not perhaps phenom enally experiencible by an external inquirer by sentences such as "S is experiencing the sound of an English h o rn ". A realists stance accordingly seems possible here. Let us concentrate on social matters and reconsider the claim that squirrel fur is money in a certain social group. W hat this am ounts to is that the group accepts that squirrel fur is m oney In o ther words, 'm oney' can be laken to reier to som ething real (viz. squirrel furs with a certain social use in exchange, etc.) il it satisfies the acceptance criterion. Ultimately I would like to cash out ali this in terms of the partipants' activities and thus move to a kind of social practice ontology. In any case, if the acceptance criterion is satislied we are dealing with a real social laet. (If squirrel fur is not accepted as m oney in the group, this is also a social fact oi course, but it does not make money real.) Ali this leaves us with such questions as w hether groups and their activities are real or only fictional. Provided that one is p repared to use the predicates 'social g roup' and 'collective acceptance' and, more generally, 'group action' at ali, it does not matter so m u ch for our present purposes w hat specific ontic content one gives them. Thus, for instance, a tough individualist may treat groups just as certain individuals "acting groupishly" or a som ewhat holistically disposed theoretician may treat them as entities supervenient on certain ind iv idu- als. In ali such cases groups and g roup actions may be regarded real (in the specified sense). W hat is at stake here is the (or an) ontological individualism-holism issue , which, hovvever, I will not discuss in detail here. From a g roups point of view there can in accordance with ou r discussion then be things which depend for their existence (creation, re-creation, and m aintenance) on intentional group activities, depend ing thus on the underlying intentions and beliels of the group m em 1 2 8 C O L L E C T IV E ACCEFTA N CE AND SOCIAL REAL1TY bers (cf. the "duality models" of Giddens, 1984, Bhaskar, 1989, Balzer and Tuomela, 1999). Note that the group members generally need to have correct beliefs about e.g. money and school, etc., when they act, but they need not think that by so acting they contribute to the maintenance and renewal of the institutions involved. Oi course, there are also things, which are independent of collective acceptance. Recall from Section V that the present collective ac- ceptance model presupposes the dichotomy between sentences whose correct assertability is entirely up to "us" (viz. up to the group members or indeed any human beings or beings capable oi operating as the CAaccount requires) collectively considered for, rather, up to our conceptual activities) and sentences whose truth is at least in part up to the vvay the inquirer-independent world causally is. This assumption presupposes that sense can be made of the causal processes occurring in the world out there. (A realist is in general disposed to accept this.) Thus, according to this view, group m em - bers can collectively accept (for the group) the truth of some sentences, e.g. "Stars cause our fate to be what it is," without making it the case that those sentences are true in the standard sense. The truth of sentences like "An Euro coin is money" on the other hand is completely dependent on relevant collective acceptance. 1 wish to emphasize that the Central thesis (CAT) has ontic import tn the sense oi connecting with the mindindependent causal order. This is because tl serves to give the participating group members rights and duties in a sense having naturalistic content, their having rights and duties entailing their being (conditionally) disposed to act in certain specific ways. This is an entailment oi ontic content within the realm of lacts, which are up to us to create. To be more specific, according to the Col- lective Acceptance account social institutions (in the full-blown sense), qua some kind of collections of posi129 R a im o T u o m e l a tion-involving normative structures, can he causally effective ultimately only via ihe group members' minds and actions. This is because we need not assume that they ontically include other, more "holistic" elements, allhough the social institution concepts seem to be irreducible primitives. Thus, social institutions have causal impact via the participants' (in collective acceptance ) thoughts and thus subjectively (in the group members' beliefs) qua social institutions, or at least their Central nervous systems (in non-intentional cases). The "internalized" rights and duties related to e.g. institutional entities like money or institutional positions (e.g. teacher) can, accordingly, in this embedding involve causal connections independent also of the group mem- bers' minds. In "non-normative" cases (cf. leader, esteem, status) based on collective acceptance in the sense of mutual acceptance belief (viz. the acceptance of something as true for the group) the analogous observation holds, for collective acceptance always is group-relative, viz. it relates the constructed and recreated things to the group (thus to the mental lile of the group members; cf. Tom is our leader only in so far as he is accepted by us as our leader). Considering the group-dependent pan oi the social World, we can make the conceptual-epistemic point that in order to be intelligible (in the sense of being correctly explainable) at least this part of the social World must be conceptualized largely as its inhabitants conceptualize it (squirrel fur may have been money lor medieval Finns but not for others). This is because vvithout this the contents ot the created social lacts here do not depend on the group-members' thoughts and cannot be made sense of as facts with social meaning. (This does not exclude the possibility that people have lalse beliefs about their physical and social environment, as long as the errors are not grave enough to result in cha130 C O L L E C T IV E A CCEPTA NCE AND SO CIA L REAL1TY otic activities.) Clearly, for every intentionally described singular social fact there is an equally true non-in tentional description in a specified vocabulary of this fact (a suitable definite description wi 11 do the trick). Thus correspond ing to the singular fact (a token event) that Matti today used squirrel fur, as money at the local market there is a complex description of this fact in physical and biological terms. This does not, hovvever, suffice tor the reduction of the corresponding type of event (viz. the event type of using squirrel fur as money), and it seemst that no corresponding non-intentional type reduction is in the olfing. Next, physical social artifacts such as church buildings , cars, chairs, books, and generally m u ch of at least a city-dweller's environm ent and "public social space" and "social geography" should be mentioned. Ali these exist as causally effective entities. They can enter causal connections not only qua having suitable physical features bu t also, and in the present context in an important sense, qua being artifacts expressing normative or non-norm ative collective practices (see Tuomela, 1998, for qua-causation). Various un in tended and unanticipated consequences (cl. the states of high inflation and unem ploym ent, pollution of the environment) also belong to social arti- facts broadly understood. h seems that they generally fall outside the scope of primary social things. Nevertheless , they are often if not in general are collective social in the derived sense, being based on things so- cial in the primary sense. Finally, there are social properties and relations which can be regarded as real in a tuore naturalistic sense and which correctly fall outside the scope of the CA-model. For instance, as seen in Section 11, TonTs en v y in g jo h n for the latter's new car can be offered as an example of such a non-constructed social fact, one, which correctly 131 R a im o T u o m e l a falls outside the scope of (CAT). A nother example is provided by some shared collective a ttitudes (or weattitudes ) in the "I-m ode" (but not those in the "wem o d e ") in the sense oi Tuomela (1995). O u r shared we-lear that a lion will attack us can at least in some cases be a relevant example of a non-construc ted social fact.* * I vvish to th an k Kaarlo Miller, Pekka M äkelä , Maj Tuom ela, an d Petri Y likoski for d iscu ssio n s an d c o m m e n ts re la ted to th is paper. Notes 1 A w e -a ttitu d e in its corc sense is d e fin ed as follovvs relative to an a ttitu d e ATT' A p e rso n has the w e -a ttitu d e relative to ATT an d a co n te n t s if and only il the p e rso n a) has ATT (s) an d b) believes th at also the o th e rs in the g ro u p have ATT (s) and also c) believes (o r at least is d isp o sed to believe) th at it is m u tu a lly believed (o r in a w eaker case p la in ly believed) that the m em b ers have ATT (s). 2 In th is p ap er 1 co n ce n tra te on su ch ega lita rian g ro u p s an d the n o t io n o f c o lle c tiv e a c c e p ta n c e . G ro u p s are h e re to be u n d e rs to o d m erely as co llections o f p eo p le , o f w hich n o th in g m ore need to be an teced en tly a ssu m ed . th e cen tra l no tio n of a c c e p ta n c e is th a t o f a n u m b e r o f p e r s o n s th o se c o n s titu tin g the g ro u p in q u estio n collectively accep tin g a p ro p o sitio n . C ollective m an y -p e rso n accep tance in th is sense o b v io u s ly s u p e rv e n e s o n th e p a r t i c ip a n ts ' a c c e p ta n c e s , becau se it is c o n s titu te d by them . 1 will acco rd ing ly assum e in th is p ap er that in the case o f co llective accep tance o f a p ro p o sitio n ali the p a rtic ip a n ts vvill accep t it. N o te , hovvever, th at his a ssu m p tio n can be re laxed even in the cases of the p re sen t k ind of loose co llections o f p eop le . T he in d iv id u a ls n iigh t share a w e-belief and be co llectively co m m itted to the be lieved p ro p o sitio n . A ssum e, h ow ever, that the sh a rin g is no t lull sh a rin g b u t th a t still a lm ost ali sh a re the w e -a ttitu d e (w h ile the o th e rs fail to have the belief o r even d isagree w ith 132 C O L L E C T IV E A C C E PT A N C E A N D SO C IA L REAL1TY it). T hen it siili is true th a t th is co llectio n o f in d iv id u a ls (say the F inns, ihe L ondoners) can be tak en to collectively accep t the p ro position . A no th er p o ssib ility for h av in g d isag reem en t is thai there is the k ind of sp o n ta n eo u s p o w er s tru c tu re in the collective that one in d iv id u a l o r a c lique o f in d iv id u a ls is able to d e te rm in e the co llective' view. T here are o ther, im p o rta n t cases o f collective accep tance in w hich p ro p e r social g ro u p s are invo lved . In such cases we speak of a social g ro u p s accep tance o f a p ro p o sitio n . In such a case the m en ibers accep tan ces m u st a lso be involved , b u t in m any cases only the so -called "o p e ra tiv e " m en ibers will jo in tly accept the p ro p o sitio n in q u e stio n , w hile the o th ers in som e w eak sense m ust tac itly accep t it o r go a long w ith the op era tiv e m em b e rs ' co llective a ccep tan ce of the p ro - position . N ot on ly the n o n -o p e ra tiv e by a lso the operative m em bers m ay in p rincip le privately accep t the negation of the p ro p o sitio n accep ted by the g ro u p . (See the trea tm en t in T uom ela, 1995, C h ap te rs 5 7.) 3 The Collective A cceptance m o d el resem bles S can lo n 's (19 9 8 ) co n trac tu a lism to som e ex ten t. As su ch a lm ost any m oral p rin c tp les and ideas can be collectively accep ted . A cceptance in th is sense is form al. To co n n ec t CA m o d el to m o rality we n eed o th er form al p rincip les , at least universalizability . There sh o u ld be also som e kind of idea of m ax im iz in g o r o p tim izing m oral good o r m oral righ tness. T hat w o u ld also be a form al d e c is io n p r in c ip le . But a lso s u h s ta n t iv e a s s u m p t io n s co n ce rn in g \vhat is right and w ro n g o r good an d bad (or what we owe to each o th er) in the m oral sense are n eeded . Perhaps S can lo n s co o p era tio n p rin c ip les , viz. the Rescue p rincip le an d R easonable H elpfu lness, can find a place here as form al p rincip les . S can lo n s Rescue P rincip le says this: If you are p resen ted w ith a s ituation in w h ich you can preven t som eth in g very bad from h ap p en in g , o r alleviate so m eo n e 's d irect p ligh t, by m ak in g only a slight (o r even m o d era te ) sacrifice, th en it w o u ld be w ro n g n o t to d o so. T h e p r in c ip le oi Reasonable H elpfulness States the following: Take in to account o th e rs in te res ts w hen th at can very easily be d o ne . I co u ld add o th er sim ilar principles, e.g. Helpfulness: Be helpful, w hen it is relattvely easily to be so, and C ooperativ ity : C o operate , w h en it is relatively easy to d o so. O th e r m oral ideas that are c o n c e rn e d w ith w h a tev e r o u r fellow m e m b e rs reg ard as m orally im p o rtan t can easily be found , e.g. Scanlon m en tio n s the im p o rtan ce oi hurnan life, the m in im iza tio n oi suffering 133 R a im o T u o m e l a is im p o rtan t, and the p reserva tion of d iversity as such acceptable m oral ideas. These substan tive princip les are group-relative and basically to be found out by m eans of em pirical research. As a sum m ary we have som ething like the follovving. Speaking in tentative term s, the CA m odel of morality w ould accordingly seem to require the following kinds of principles (m ost of which are considered in Scanlon, 1998): I Form al principles (absolute, not group-relative) a) Universalizability h) O ptim ization of moral rightness c) Individual complaint principle (individuals' complaints m ust count, consensus principle) d) C ooperation principles (such as Rescue Principle of Reasonable H elpfulness) and other morally relevant principles oi action II Substantive principles (group-relative) i) a priori ideas of what is morally right (e.g. hum an lile, m cluding of course one's own life, is to be preserved) iil empirically investigatable ideas about what a group finds as morally im portan t in a substantive sense (sub- stantive moral "bottom Iines"). References Balzer, W , and Tuomela, R., 1999, S o c ia l P ra c tic e s a n d C o lle c t iv e A t t i tu d e s , ms Barnes, B., 1983, 'Social Life as Bootstrapped Induetion',S o c io lo g y 1 7 , 524-45. Bhaskar, R., 1989, R e c la im in g R e a lity : A C r i tic a l In tr o d u c tio n to C o n te m p o r a r y P h ilo s o p h y , Verso, London Bloor, D., 1996, Idealism and the Social Character of M eam ng', m anuscript C ohen, ]., 1992, An E ssa y on B c lic f a n d A c c e p ta n c e , Oxford U ni- versity Press, Oxford G iddens, A., 1984, T h e C o n s t i tu t io n o f S o c ie ty , Polity Press, C am - bridge Kusch, M., 1997, 'The Sociophilosophy oi Folk Psychology', S tu d ie s in H is to r y a n d P h ilo s o p h y o f S c ie n c e 2 8 , 1-25 134 C O L L E C T IV E ACCEPTA NCE AND SO CIA L REAL1TY Lagerspetz, E., 1995, T h e O p p o s i t e M ir r o r s : A n E s s a y on th e C o n v e n t i o n a l i s t T h e o r y o f I n s t i t u t i o n s , K luw er A cadem ic Publishers, Dordrecht, Boston, and London Scanlon, T., 1998, W h a t \Ve O w c to E a c h O t h e r , H arvard Univer- sity Press, Cambridge, Mass. Searle, J., 1995, T h e C o n s t m c t i o n o f S o c ia l R e a l i t y . London, Allen Lane, The Penguin Press Sellars, W , 1968, S c ie n c e a n d M e t a p h y s i c s , Routledge and Kegan Paul, London Tuom ela, R., 1985, Science, Action, a n d R e a l i t y . D. Reidel Publishing Company, Dordrecht, Boston, and Lancaster Tuomela, R., 1995, T h e I m p o r t a n c e o f Us: A P h i lo s o p h ic a l S t u d y o f Basic So c ia l N o t i o n s , Stanford Series in Philosophy, Stanford University Press, Stanford, Cal il Tuomela, R., 1998, 'A Defense of Mental Causation , Phi losoph ica l S t u d ie s 9 0 , 1-34 Tuomela, R., 1999, 'Belief versus Acceptance', ms Tuomela, R., 1999, 'Searle, Collective Intentionality, and Social Institu tions', forthcom ing in the Proceedings of the sym posi- um "Speech Acts, Mind, and Social Reality: Discussions vvith John Searle" hcld in Bielefelcl in 1999 Tuomela, R. and Balzer, W, 1997, 'Collectivity and Collective A ttitudes', to appear in the Proceedings of the conference "Fact or Piction?'' (Rotterdam , Nov 1997) Tuomela, R. and Balzer, W , 1999, 'Collective Acceptance and Collective Social N otions', S y n t h e s e 1 1 7 , 175-205 T uom ela, R. and B onnevier-T uom ela, 1997, 'F rom Social Im itation to Teamvvork', in H olm ström -H intikka, G, and Tuo- mela, R. (eds.), C o n t e m p o r a r y Action T h e o r y , voi. II: S o c ia l A c t i o n ), Kluvver Academic Publishers, pp. 1-47 135 Michael Q uanle ON THE LIMITS OF CONSTRUCTION AND INDIVIDUALISTI IN SOCIAL ONTOLOGY O u lI ines o f s o c i a l ontology beyond Sc i e n t i f i c n a t i u eilis m Die V ereinigung als solche ist selbsl der w ahrhafte lnhalt u n d Zweck, u n d die B estim m ung der Ind iv iduen ist, ein allgem eines Leben zu fuhren. (G.W.F Hegel) In this article 1 will try to make visible the lirnils oi consti uction and individualism in social ontology. My main thesis is that the ideologies of Scientific naturalism and methodological individualism have a deep - and distorting inlluence on the current approaches in social ontology. This can be seen even in the excellent theories oi John Searle and Margaret Gilbert w ho try to Iree themselves from these background ideologies. My interest in this article is primarily on ontological and methodological questions. But since the relation betvveen etlucal and ontological questions is im portant for my topic, 1 w an t to separate ontological and ethical questions clearly from each other. Sometimes in the literature on our topic these questions and the ansvvers to 136 O n THE L1M1TS O F C O N ST R U C T IO N A N D INDIV1DUALISM them are confusedly run together or are not distinguished at ali. To be sure, distinguishing between these two kinds of questions does not amount to the claim that they are completely Independent from one another. Nevertheless 1 want to emphasize that these questions must be clearly distinguished if we want to clarify how they might be related. Onto log ica l questions, to give some examples, include the (ollowing: Are there irreducible social facts? Can groups be reduced to their members? Is social reality constructed? What is the relation between nature and social reality? What is the function of social entities such as groups or States? What is the nature oi social enti- ties? Are social facts evaluative or normative? With respect to the last question one clarification may be in order. To ask whether social lacts are evaluative or normative is not to ask an ethical question. lf we give a positive answer to this question, evaluative or norma- tive terms are mentioned, not used. We should always have in mind that to point out the evaluative or norma- tive nature of social reality is not the same thing as to make an evaluative or normative claim. E th ica l questions include the follovving: How should the freedom of autonomous persons be related to political or social obligations? Should social entities have irreducible rights? Should social entities have aims vvhich cannot be reduced to the interests of individuals ? Should autonomous individuals acknowledge ob- ligations vvhich are in conflict vvith personal autonomy? Should members of social entities regard these social entities in a purely instrumentalistic way? The rough notion of ethics vvhich is operative in this article includes questions about the good lile and nor- mative aspects of morality or political obligations. Since 1 am here primarily interested in the ontological level and in hovv the ontological and the ethical levels are related, this somevvhat loose sense of the ethical vvill 137 M ic h a el Q u a n te suffice for my purposes in the following. Having distinguished between ontological and ethical problems of social reality one may ask how these two domains are related. Do answers to the ontological questions have ethical implications? Do ethical considerations guide our thinking about ontological questions? If so, what are we to make of this? Is the evaluative (or normative ) nature of social reality at least partly shaped by ethi- cal considerations? Are we allowed to have a normative ontology here in the sense that ethical considerations may at least he included in the ontology of the social? Is it a mistake to analyse social ontology on the basis oi some ethical premises such as assumptions about the right relation betvveen say political obligations and personal autonomy? Is there an ontology of the social which is fundamental in the sense oi being completely independent of our ethical thinking? In order to understand these questions about the relation betvveen the ontological and the ethical level it is necessary, first to clarify the ontological issues. As the title oi my article suggests, 1 shall concentrate on the notions of construction and individualism understood as ontological categories.1 Furtherm ore it suggests that although there is some truth in construction-talk and individualism there is also something vvrong with it. In the following 1 will try to show where their limits are. I. Individualism and constructivism I n d i v i d u a l i s m is, as we shall see, a version of social constructivism. "The doctrine oi methodological individualism " is, as Steven Lukes has put it, the thesis "that facts about Society and social phenom ena are to be explained solely in terms of facts about individuals" (Lukes 1992, p. 121).2 Il we take "psychological" to 1 3 8 O n THE L1MITS O F C O N ST R U C T IO N AND 1ND1VIDUAL1SM. mean "psychological features of individuals", the Central question here is: (Q -l) Are social phenom ena reducible to psycho- logical phenomena? A second question which lurks behind the picture of the construction of social reality can be stated as follovvs: (Q-2) Are social phenomena reducible to brute facts?5 Whereas the lirst question concerns the relation betvveen two levels vvithin the mental the psychological and the social the second question cleals, roughly speaking, with the relation between the mental and the physical (or biological ). The anscvers to these questions are logically independent (cl. Mandelbaum 1992, p. 110 fn. 3). One may be a reductionist m the sense of adopting methodological individualism vvithout being a reductionist concerning the mental and the physical (or the biological). Or one might hold that both the social and the psycho- logical can be reduced to the physical (or the biological) without holding that the social can be reduced to the psychological. Or one might think that neither reduction is possible. Finally as many philosophers do one may believe that the social can be reduced to the psy- chological in a lirst step, and the psychological to the physical (or biological) in a second step.4 Individualism is, as I claimed above, a version oi so- cial c o n s t r u c t i v i sm . So we need to distinguish between t\vo kinds ol construction: the construction of social reality on the hasis of individual psychology and the construction oi social reality on the bedrock oi the physi- cal (or biological). In order to keep these two lorms of constructivism distinct I shall use "constructivism " to refer to the latter sort and "individualism " to refer to the former. 139 M i c h a e l Q u a n t e Constructivism and individualism as such do not entail reductionism. Therefore, we can speak of nonreductive constructivism and of non-reductive individu- alism. As I read them, John Searle defends a version of non-reductive constructivism, while Margaret Gilbert defends a version of non-reductive individualism. Underly ingjohn Searle's non-reductive constructivism is a concept of nature which belongs to Scientific naturalism (of which he accepts certain elements and criticizes others). In the background of Margaret Gilbert's non-reductive individualism is a reductive version of individualism, i.e. methodological individualism. In what follovvs I will try to show that Scientific naturalism and methodological individualism are a source of certain misleading tendencies in social philosophy - tendencies which make it difficult to see and understand the limits of individualism and construction. II. Searle s theory In T h e C o n s t ru c t io n o j Soc ia l R e a l i ty Searle approaches social philosophy primarily from the ontological poit of view.5 Ethical considerations are not explicitly at issue. This feature of his approach and his commitment to naturalismi make his arguments a good starting point. According to Searle, the starting point for social philo- sophy must be a proper understanding oi the mindbody relation: "The mind is just a set oi higher-level features of the brain, a set of features that are at once 'mental' and 'physical '. VVe will use the 'mental1, so construed, to show how 'culture' is constructed out of 'nature1.'1 (CSR 9) Searle wants to abandon the traditional dualistic conception of the m ind-body relation, and 1 am quite 140 O n THE L1M1TS O F C O N STR U CT IO N A N D 1ND1VIDUAL1SM. sym pathe tic wiih this wish. A second crucial c o m p o n e n t of his ap p ro a ch is w h a t he calls "ex te rn a l rea l ism " the th e s is , a s c r ib e d to c o m m o n sense a n d a c c e p te d by Searle, tha t there is a m in d in d e p e n d e n t reality.'1 Finally, Searle in tro d u c es a "d is t inc t ion b e tw e en those features of the w o i id tha t exist in d e p e n d e n t ly of us and those th a t are d e p e n d e n t on us for the ir ex is te n ce" (CSR 9). A l th o u g h I agree tha t there is som e sense in w h ic h this c la im is co r rec t , m u c h d e p e n d s on h o w it is to be u n d e r s to o d . Searle d is t ingu ishes first b e tw e en an ontological an d an epistemological sense of the sub jec t ive-ob jec tive -d is- t inc tion . The m in d in d e p e n d e n t par t oi reality is objective in the ontological sense a n d the m en ta l b u i ld s the onto log ica lly subjective part. Ali m in d d e p e n d e n t pa r ts of reality are ontologically sub jective . O n Searles f o rm u la t io n the sub jec t ive a n d the ob jec tive in th is on to log ica l sense are m o d e s of existence. In the epistemological sense, acco rd ing to Searle, facts are objective il they can be justilied. A n d it is possible th a t the re m ig h t be ep is tem ically ob jective facts a b o u t on to log ica lly subjective par ts ot reality. M oreover there are sub jective facts k now ab le on ly from the first-person -s ingu la r-pe rspec tive . A se co n d im p o r ta n t d is t inc t ion w h ich Searle m akes is b e tw e e n objects a n d aspects o r features of objects . M ind itsell is a feature of reality a h igher-level feature of the bra in . This seem s puzz l ing to me b ecause the m ind itself is trom the f irs t-pe rson -pe rspec t ive clearly activity , no t a feature of som e th ing . This p ro b le m is a con- se q u e n c e of the f act that the "h igherleve lfea tu re -read- in g " is m a d e from the th ird -p e rso n -p e rsp ec t iv e while - seen from the f i rs t-pe rson-perspec t ive the m en ta l is p a r t of o u r be ing in the World, part of o u r Lebcnsform. Given the d is t inc t ion b e tw e en ob jec ts a n d the ir fea- tu res o r aspec ts it follows, thirdly, tha t the re can be differen t k in d s of features b e lo n g in g to the sam e objects. 141 M i c h a e l Q u a n t e Hence the ontological distinction betvveen subjective and objective parts of reality may be understood as a distinction between features of substances, not between substances or domains of objects. Consequently, Searle distinguishes between su b je c t i v e and ob jec t iv e f ea tu re s ot the world. It seems unproblematic to me that there may be epistemically objective facts about subjective features without this requiring that there be 'subjective' objects in the world. We may therefore draw an epistemic dis- tinction between su b je c t ive and ob jec t iv e Jac ts . Searle further distinguishes between two kinds of features: in t r in s ic and o b s e r v e r r e la t i v e ones. Intrinsic features are mind-independent. whereas observer-relative features are relative to observers and users. These features are m ind-dependent, and so, according to Searle, ontologically subjective. This distinction is crucial, since according to Searle observer-relative features are ontologically constitutive oi social reality or at least of social mstitutions. Since these features are created or constructed by intentionality and are mind-dependent, the notion of construction comes into play here (CSR 190). Problems relevant to our topic lurk here because, as Searle himself notes, there is a tension between intrin- sic and observer-relative features on the one hand and subjective and objective features on the other hand (CSR 11). Mental features are intrinsic and not mind-inde- pendent, that is, they are intrinsic subjective features. Searle's distinction between consciousness and intentionality as kinds ot ontologically subjective features of reality and his restriction oi observer-relativity to intentionality does not resolve this tension, because intentionality itself is an intrinsic feature of the world. Furthermore Searle invokes a distinction between brute and non-brute facts. Here Searle's taik ot nonbrute lacts rellects a problem that l have encountered 142 O n THE L1MITS O F C O N STR U CT IO N A N D 1NDIVIDUAL1SM. in reading him. He seems generally to oppose brute lacts to institutional facts (cf. CSR 2, 27, 34f. or 1901.), except for one time (CSR 15) vvhere bru te facts are contrasted with facts including function ascription gener- ally. Since Searle distinguishes between the class ot so- cial lacts and the class of institul ional facts as a subclass oi social lacts (CSR 26), it seems to tollow that ali noninstitutional lacts are brute facts. Hence there could be brute social facts. Now I th ink that this reading is not intended, for brute lacts seem to be intrinsic facts of nature, which are not Observer-relative. Brute facts are com pletely rep resen ta t ion -independen t. Hence they might be altogether independen t of intentionality. Indeed , Searles em ploym ent of the term "brute physical facts" (CSR 121) suggests this interpretation. Another passage in Searles book suggests an alternative conception of brute facts, however. Social facts can be created only by agents w ho have the capacity to assign functions (CSR 19). In my m ind this is not helpful , hovvever, since Searle does not strictly adhere to the distinction between social and institutional facts. Sometimes he uses the notion of social facts to pick out the special features oi this subclass oi institutional facts, sometimes he uses institutional facts as pars pro toto to reveal something about social facts generally.7 Since 1 was not successful in overcoming my uncertainty according to the criteria for social facts and the relation between social and institutional lacts generally, 1 wi 11 op p o se b ru te a n d n o n -b ru te facts leav ing it op en w hether some social lacts are brute ones or not. Betore I can try to show where these difficulties in Searles theory might come from, 1 want to make briefly one more point concerning brute facts that is of some im portance for my arguments. Although Searle claims that his notion of brute fact is derived trom Elisabeth Anscombe, 1 do not th ink that he actually uses this notion in A nscom be's sense.8 According to Anscombe 143 M ic h a e l Q u a n t e (1958), the bruteness of a laet is a relational feature. A fact B may be brute relative to some descriptions oi events or some set oi facts, bu t tt may be that the very same fact B is non-bru te relative to some other description oi events or some other set of facts. Now Searle does employ som eth ing akin to A nscom bes conception of brute facts, for he maintains that brute lacts are intelligibility-conditions for other facts. To be sure brute lacts and the related set ot non-bru te lacts are hierarchically related. But on Searles account the distinction between brute and non-brute reflects an ontological dis- tinction, and so tt is not a relational b u t an absolute distinction. Moreover, he relates bruteness to robustness and fundam ental reality. Hence on Searles picture we seem to have different ontological levels a kind of "layer-ontology" (cf. Kim 1993, p. 337). Even though this is not incompatible with A nscom bes m odel, it does not follow from it. It seems to me that Searle's reading of the difference between brute and non-brute tacts is motivated by Sci- entific naturalism. O n this picture, what is real is the world described by natural science. Everything else depends on it and ali o ther features are observer-relative and constructed or created. III. The fundamental problem of Searles theory Intentionality is an in tnnsic (even il higher) feature of the brain, a biological phenom enon . It adds no nonphysical objects to reality. W e-intentions which even hyenas might have (according to Searle), are natural in this sense. Thus intentionality and, l might add, the social world as a whole is realised in physical reality. In his insistence on the biological or even physical basis of intentionality Searle opposes the natural to the super144 O n TH E LIMITS O F C O N ST R U C T IO N A N D 1ND1VIDUAL1SM... natural. But in ihe next step he further identifies what is natural with objects and features described by natural science. AU other features, even biological functions, are constructed by intentionality. By consequence of this the natural is opposed to the m ind-dependent, and there is a strict opposition now between nature and cu ltu re .9 Searles chiel example oi a m ind-dependen t feature is being money. Since there is no physical hasis for why a piece of paper is a ten-dollar-bill, being a ten-dollarbill is a feature constructed by complex relations of in- tentionality and representation. There is consequently a part of social reality in which features of objects are observer-relative. This m uch is true in constructiv ism .10 But som eth ing has also gone w ro n g here. First of ali, we need an a rgum ent which leads from the naturalness of the m ental (as o p posed to the superna tu ra l) to the idea that natu re is com pletely described by natural Sciences. H in t in g a t ex terna l realism is of no h e lp here. Even if c o m m o n sense accep ts the thesis tha t the re is a m in d - in d e p e n d e n t reality, it is no t c o m m it te d to the idea that there are n o m in d d e p e n d e n t par ts of reality, a forteriori no t il it is accep ted tha t the m e n ta l is a pa r t of reality itself. F u r th e rm o re , c o m m o n sense is no t c o m m it te d to the idea tha t na tu re is res tr ic ted in the sense in w h ich Scientific na tu ra l ism takes it to he. My c la im is tha t ph i- lo so p h e rs sh o u ld no t h o ld to Scientific na tu ra l ism here either. True, the m en ta l is par t of n a tu re , bu t we do have the no t io n of "second n a tu re " vvhich inc ludes those aspec ts th a t be lo n g to the w ay m e m b e r s of a species live the ir lives. O u r c u l tu re is n a tu ra l for us, m aybe not in the sense of be ing m in d in d e p e n d e n t , b u t in so far as it is a realisation of o u r na tu ra l a n d in tr insic capaci- ties a n d features. These features are n o t obse rver-re la - tive in th e sense s ta ted above. Searle himself tells us that in doing social philosophy we m ust adopt the herm eneutic stance and acc o r d in g ly th e first-person-perspective, including both 145 M i c h a e l Q u a n t e [he firsl-person singular and p lu ra l .11 However, il is not true that ali features of second nature are observerrelative . Only some such as being money are. Searle unplausibly extends the features oi the money-example to cover ali social phenom ena . Moreover, his distinction between brute and non-bru ie facts is draw n from a purely explanatory th ird-person-perspective , which is not suitable for social phenomena. Indeed, even the thesis that the mental is a natural biological phen om enon does not imply that this phen o m en o n may he properly explained from the third-person-perspec- tive. With respect to social philosophy m ind should not be taken as a feature oi the brain but as an activity, or as a Lebensform and this may be done only from the first-person-perspective. Even ihough Searle devotes considerable a ttention to intentional activity, his conception of construction is quite clearly motivated and determ ined by an underly ing com m itm ent to scientiiic naturalism. In other words, Searles argum ents are infected with the idea that nature is completely and exclusively described by natural Sciences. Although he himself sornetimes makes clear that there are some tensions in his account that derive trom this, he nevertheless conflales social reality as it is seem from the first-person-perspective with his ontological criteria com ing from the thirdperson -perspective. This is especially apparent in his notion oi the background abilities which 1 th ink is one oi the most fascinating and successful parts of his theory. Even tn his discussion oi the background abilities Searle oscillates betvveen the lirst-personand the third-personperspective . Although the rejection of Cartesian dualism implies that ali our abilities supervene on our b io- logical capacities, il is incorrect to reduce these back - ground abilities to d ispositions or som eth ing else as described by natural science. Background abilities are 146 O n THE LIM1TS O F C O N STR U CT IO N AND IND1VIDUALISM o ur first nature as it is shaped by our second nature, or o u r biological aspect seen from the perspective of sec- ond nature. It is no surprise that education, habitus or Bildung are the Central categories of this part oi reality. I th ink that we need an ontology that allows us to understand the difference betvveen background phenom ena and intentional phenom ena vvithout reducing the back- ground phenom ena either to our biological nature as it is described by natural science or to mere social constructions . Although there are features of reality and even of intentionality itsell which are constructed or created by intentionality, not every feature that is not a part of Sci- entific naturalismi is observer-relative, created or projected onto reality. We shoulcl not identify com m on sense realism with Scientific realism and we should not identify nature with the worldview of Scientific naturalism . In adopting this strategy one does not fall back into Cartesianism. Moreover, we should not concentrate only on those features of reality which are observerrelative in the way a piece of paper that functions as m oney is. The bedrock of social reality are the structures oi intentionality: recognition (A n e rk e n n u n g ), values , intentions and the vvill. The mental taken as activity is the basic structure of social reality. With this in mind 1 w ould like to suggest an alternative way of distinguishing the mental and the physical. IV An alternative way of draw ing the Iines I suggest that we have to distinguish between four kinds of features realised in na tu ra l physical objects and events: m ind-independen t, m ind-involving, m ind-dependen t and m ind-constructed features. Mind-independen t features are features vvhich can be realised independently of the existence of intentional147 M ic h a e l Q u a n t e ity.12 They are those features vvhich have existed or would exist in a World devoid of mental features. M ind-invo lv- ing features are constituted1 'b y intentionality but are either not realized as effects of intentional actions at ali or are causally independent of any actual intentional action which takes place at the moment ot the realisation of the token ot the mind-involving feature in question. Many learned and trained movements ot the body for example in sports or driving a car are of this kind. As results of former intentional efforts they become as we say in German - "in Fleisch und B lut ubergcgangcn". The realisa- tion oi m in d -d ep en d en t features is alvvays the effect of an intentional action x of S without S having intended14 to realise them by his doing x. A famous example of these features is given in the analysis of alienated labour in the social philosophy of Karl Marx. Finally m ind-constructed features are those features whose realisation is the effect of an intentional action x oi S and vvhich are intended by S to be realised by his doing x. The lirst and the fourth group of leatures need not be discussed here, although 1 am not convinced that Searle is right in excluding ali functions trom the mindindependent leatures. lf tvvo persons agree in using a piece oi w ood as a knight in their chess game, they obviously intend to give this piece of wood features vvhich are m ind-constructed. Here we have a clear case oi social construction, even il the money-example Searle uses so olten may not be such a clear example of this. Furtherm ore, m ind-dependent features are not in need of a lengthy discussion since they have been studied at length in the philosophical analysis oi social phenom ena . Many elfects ot intentional actions are not intended by agents and yet are of great im portance because they constitute social reality and deliver conditions in vvhich individual agents have to realise their goals (e.g. the market-system). Obviously to analyse m ind-dependent or m ind-constructed leatures is no problem tor a social 148 O n THE L1M1TS O F C O N ST R U C T IO N AND 1NDIV1DUALISM constructivist theory such as Searles. Things are different w hen it comes to those features I liave nam ed "mindinvolving ". This group of features includes some of the background abilities such as those abilities, disposition, or patterns of individuals which exist independen tly of actual intentional actions but which cannot be identified without knowing that there is intentionality and vvithout knowing what it is to be an intentional agent. Moreover this group includes those aspects of in ten- tionality which are realised in the way h um ans live their lives. Here we see that there are facts abou t h u m an beings which constitute the way h u m an intentionality is shaped, structured or organised, and w hich nevertheless cannot be taken to belong to nature as it is described by Scientific naturalism. They are facts about the second nature of hum an beings that canno t be reduced to the class of m ind-dependen t or even mindconstructed features. Many social p h enom ena like love or trust are neither reducible to biological phenom ena nor are they mere causal 'side-effects' or in tendend results of hum an constructions. To put it this way: Mindinvolving features are those features which ou r social nature consists of and vvhich are realised w hen our so- cial nature manifests itself in the social reality we live in. Sinee these mind-involving features can help us to explain other social facts, they can be taken as brute facts. And since they are not result of intentional action they can be regarded as intrinsic facts. These facts can be discovered by observers but they are not created thereby. This account impi ies that constructivism makes two mistakes. First, it dravvs an absolute ontological distinction between m ind-independen t, intrinsic, or brute features and those features that are regarded as observerrelative . Second, it conceives ali features w hich are not m in d in d ep en d en t as m in d -cons truc ted . T hus c o n - structivism dravvs one rough d istinction vvhere we need 149 M i c h a e l Q u a n t e several f ine-g ra ined ones. Like J o h n Searle, 1 th in k that "the re oug h t lo he a m o re o r less c o n t in o u s Story tha t goes f rom an on to lo g y of b io logy to an on to logy tha t in c lu d e s cu l tu ra l a n d in s t i tu t ional forms; there sh o u ld no t be an y radical b r e a k " (CSR 227). Therefo re I th in k we sh o u ld replace social c o n s tru c t iv ism w ith a m ore f ine -g ra ined theory. V The limits of individualism 1 w an t to tu r n n o w to the limits of in d iv id u a l ism a n d to the q u e s t io n of h o w the on to log ica l a n d the e th ica l d i m e n s i o n oi soc ia l p h i l o s o p h y m ig h t be re la te d . A l th o u g h e th ica l c o n s id e ra t io n s are n o t the top ic oi Searles The Construction of Social Reality we ca n read the fo llow ing evaluative s ta te m en t there: "O ne oi the m ost fascinating a n d te r r i fy in g fe a tu re s of the erä in w h ic h 1 w rite th is is the s teady ero s ion of accep tance of large in s t i tu t ional s t ru c tu re s a r o u n d the World. The b re a k d o w n of nat ional lden ti l ica tion in favor of e thn ic tr iba lism o ccu rs in places as various as B osn ia , C a n a d a , th e f o r m e r C z e c h o s lo v a k ia , Turkey, an d m a n y A m erican un ivers i t ie s ." (CSR 1 17) 1 lully agree w ith this desc r ip tion . F u r th e rm o re , 1 t h in k tha t social p h i lo so p h y has tw o m ain tasks: first un d e r - s ta n d in g the reasons for th is e ros ion ot the social W orld an d seco n d ly d e v e lo p in g theo ries w h ic h he lp to restore the accep tance oi ins t i tu tions an d to deve lop reasonable ways oi Iden ti fica t ion w ith the social w orld . 1 t h in k tha t c o m m o n u n d e r s ta n d in g oi the n a tu re oi o u r social reality has a t r e m e n d o u s im p a c t on h o w peo- ple live in the ir social w orld . F u r th e rm o re 1 believe tha t ph i lo so p h ica l theories a b o u t the social are an im p o r - ta in factor in th is c o m m o n u n d e r s ta n d in g : they are ar150 O n THE L1MITS O F C O N STR U CT IO N AND 1ND1VIDUAL1SM. ticulations of this com m on unders tand ing on the one hand and they give rise to new versions of the com m on understanding on the other h a n d .1'' My intuition is that the 'trickling d o w n ' of unlimited constructivism and individualismi with respect of so- cial ontology into this com m on understand ing is one oi the reasons why identilication with existing and allegedly "created" institutions vanishes and an onenta- tion allegedly objective "b ru te" ethnic facts comes to the surface. This may be understood as a result oi a loss of belief in the robustness of social reality, and as a response to the idea that social institutions are created only to serve the interests and purposes oi individuals. In times ofcrisis a more lundamental basis is dem anded than anything that could be derived from institutions w hen they are understood as mere conventions, creations or as simply dependent on hum an agreement. And often biological or ethnic features are proposed as the basis for a new biological or at least natural social order . Searle's version oi social constructivism may not be guilty of this on the surface level, because h is theory suggests explicitly that the created or constructed so- cial world is not merely a tool for specific purposes or for the fulfilment oi individual, group or class interests. Yet the background ideologies oi scientilic naturalism and oi methodological individualismi may nevertheless be d iscerned in non-reductive constructivism and in- dividualismi. And to my m ind these background ide- ologies have consequences not only lor social philosophy , but also lor social reality since they have the tendency of leading com m on unders tand ing of the nature of social reality and social institutions into the direction of varieties oi unlimited constructivism and indi- vidualismi. The apparent erosion of the acceptance Searle diagnoses might very well be partly a consequence oi this changed com m on u nders tand ing .16 151 M ic h a e l Q u a n t e In order to m ake my intuition plausible and to make some oi these relations apparent, 1 shall consider the relation betvveen the ontological and the ethical in the course of my discussion of non-reductive individualism . Yet, 1 do not m ean to claim that there need be strong logical connections between ontological and e th i- cal theses. These relations seem to me to be more ideological than logical. One might even say thai philosophers doing social philosophy are sometimes led astray because they believe that certain ontological claims will necessarily result in certain unacceptable ethical conclusions.17 To bring these possible relations between these two dim ensions of social philosophy into view 1 want to consider (1) the relation betvveen Scientific naturalism and methodological individualism, and (2) the rela- tion betvveen methodological individualism and e th i- cal individualism. Furtherm ore I will ask (3) what is the signilicance of ontological holism for ethical ind i- vidualism and (4) vvhether we may build ethical considerations into our social ontology. Belore I give a short sketch oi my ansvvers to these four problems in the concluding section of this article, 1 will clarify what these questions mean. 1 vvill argue for my claim that even non-reductive individualism has its limits. In the following, only the relation between the psychological and the social, and not the relation between the mental and the physical, is at issue. Also it is im portant to notice that we are speaking of h u m a n beings not simply as biological organisms but as part of the social World, as having personality and individuality as beings that may be acknow ledged as more or less au tonom ous m em bers in various social contexts. Therelore we are dealing with au tonom ous persons who have a right to personal au tonom y which has to be realised in social and political institutions and has to be respected by the State. 152 O n THE LIMITS O F C O N ST R U C T IO N AND INDIV1DUAL1SM. For the purpose of this article it will be helpful to distinguish three ontological and four ethical options which seem to be in the background of m uch discussion in the ph ilosophy of social reality.18 On the ontological side we firstly have o n to lo g ica l k o - l is tu . According to this position personal autonomy of a hum an individual presupposes the existence of a suitable structure oi the sutrounding social world and is constituted by social facts. The credo of m e t h o d o lo g ic a l i n d i - v idua l i s t i t is that ali facts about social phenom ena can be reduced to facts about psychological States of individual persons. According to this second option reality is constituted by individual psychological facts. A third way is suggested by n o n r e d u c t i v e i n d i v i d u a l i s o i , vvhich claims both that there are irreducible social facts and that there are irreducible individual psychological facts. C onsidering the theory of John Searle, one might ask vvhether he is a methodological or a non-reductive individualist (since he accepts irreducible first-personsingular intentional States he is an individualist in any case). On the one hand he claims that collective intentionality or We-intentions are not reducible to 1-intentions . This seems to make him a non-reductive indi- vidualist. On the o ther hand he says (CSR 26) that having a we-intention is a psychological state realised in an individual agent. In this sense he m ight be a m e th - odological individualist because he refuses to postulate some social super-m ind vvhich is the ovvner of an wein tention (CSR 25). Margaret Gilberts approach (LT 211) is similar in this respect. Nevertheless, I think that they are both non-reductive individualists. There are tvvo ways of understanding this idea. Now we must bear in mind that according to my thesis social philosophy has to be com m itted to the first-person-perspective and the hermeneutic stance. Therefore the laet that a we-in tention is instantiated in the brain of an individual organism is irrelevant here. 153 M ic h a e l Q u a n t e Relevant are the contents and the commitments which are instantiated thereby. Moreover the instantiation oi we-intentionality in more than one organism does not constitute social reality19 What is decisive is the Spe- cial structure of we-intentions forming a joint-commitment , as Gilbert has shown. There is hence more to social reality than the simple co-instantiation oi weintentions . Decisive lor the ontology oi social reality is the structure of collective intentionality which cannot he reduced to interrelations between individual inten- tionality As Gilbert shows, no summative account can grasp tully the content oi collective intentionality (LT 197 ff) and as Searle argues tn a similar vvay, "no set of '1 Consciousness', even supplemented with beliefs, adds up to a lWe Consciousness'" (CSR 24). But why call these accounts individualism? Let me say first, that 1 believe that Searle would defend non-reductive individualism and not ontological holism, although in T h e C o n s tru c tio n o f Socia l R ea lity there are no arguments for this claim. My reason for believing this is his com- mitments in the philosophy oi mind, especially his claim that any form of externalism is incorrect (cf. Searle 1983, Chapter 8). So 1 take hiin to hold the thesis that indi- vidual intentionality can exist independently (in the constitutive , not in a genetic sense) oi any form oi social reality As 1 read hiin, human beings simply have indi- vidual and collective intentionality. My reason for counting Gilberts theory as a form of individualism is that as far as 1 can see she takes autonomous individuals as the starting point and ar- gues forcefully then that a non-reducible social reality emerges Irom their interactions. This is evident for example in the discussion ot love in her earlier work (cf. Gilbert 1989. pp. 223f f.) and her recent papers (e.g. LT Chapter 8): Love is discussed primarily under the aspect of how autonomous individuals "merge" in love relationships. The other direction, that is, how human 154 O n THE LIM1TS O F C O N ST R U C T IO N AND 1N D IVIDU AL1SM ... beings develop a sense of being au tonom ous persons in love-relations, is not discussecl.20 O ther themes dominant in her various papers are "agreem ent" (cl. LT 293) w hich seems to presuppose au tonom ous persons, and 'Identification" (LT 377).21 Moreover she seems to accept the "'individualistic' na tu re" of focus in her approach claiming however that she is "sensitive to the 'holistic' nature of what is achieved by agreem ents" (LT 307 fn. 23). As she States in this note, an ontologically individualistic approach need not take jo in t commitm ents as "'asociaL or atomistically'" (ibid.) in an ethical sense, as I vvould Itke to add. But maybe this formulation does not capture Gilberts position, lndeed at one point she explicitly says that she does not want to decide "vvhether plural subject concepts are in some way parasitic upon or secondary to our conceptions of the psychological attributes of individual hum an beings" (LT 349). Furthermore, there clearly is a development (rom "On Social Facts" to the papers inc luded in "Living Together". In the later works she writes, that in "On Social Facts" she spoke of the suin of wills and the pool oi wills without implying "the wills in question som ehow merged together to become indistinguishable , as drops of water might merge in a pool of water" (LT 20 fn. 10). And, as 1 read her papers, the theory of joint commitments includes non-reductive individualism more clearly ihan the former book but it is not committed to ontological holism either. My point is that we shou ld not only focus on the way au tonom ous persons let social reality emerge but also on the way social reality constitutes au tonom ous persons. If we remember that becom ingan au tonom ous person is possible only as a m em ber of social reality wc should ask vvhether we ought to regard the develop- ment of au tonom ous individuals as the first and fundamental step vvithin social reality and the emergence of social g roups out of au tonom ous individuals as the sec155 M ic h a e l Q u a n t e ondancl ontologically d ependen t step. This, 1 th ink , is ihe tru th in ontological holism and il is a lim itation oi social ph ilosophy if it canno t accom odale ihe first claim. A iten tion has to be paid to the "social passions" to use Josiah Royce's phrase (1908 , p. 41) like loyalty , or to the phenom enon of basic trust in social institu lions w ithou t w hich these institu tions sim ply cannot w ork. There are social em otions, feelings and passions w hich are constitu tive for our social World and also tor personal au tonom y w hich thus cannot be red u ced to form s of m utual in tentionality (Lagerspetz) or collective acceptance (Tuom ela).22 To my m ind the concentration on the second step prim arily is a reflection on and reaction to the doctrine ot m ethodological individualism , w hich lorces us to take au tonom ous persons as the basic units. Since this m ay at least partly be ethically m otivated we have to consider the eth ical aspects now. O n the ethical side four positions have to be distinguished . S t r o n g e t h i c a l h o l i s m claims that the interests23 of social entities are the only ethically respeclable values. The interests oi the individuals are respectable only as means for realising the social functions and aims. S t r o n g e t h i c a l i n c l i v i d u a l i s m holds the opposite thesis that only individual interests are w orthy oi ethical consideraiion. Interests of social entities are respectable only as means for realising individual interests. Besides these two extreme positions there are two m ediate options. According to w c a k e t h i c a l h o l i s m both the interests of social en ti- ties and the interests oi individuals are ethically respect- able. In cases of conllict social interests should receive prim ary consideration. X V e a k e t h i c a l i n c l i v i d u a l i s m agrees w ith the first pari of weak ethical holism but holds that in case of conllict the individual interests should dom inate the interests ot social entities. C ertainly o ther positions may be held. Yet 1 th ink my clistinctions suflices to include the m ost historically 156 O n TH E L1M1TS O F C O N ST R U C T IO N A N D 1NDIVIDUAL1SM. influental positions and systematic options. Strict libertarians like John Stuart Mill, for exam ple, w o u ld clearly defend strong ethical individualism. Many contem porary com m unitarians, on the o ther hand, hold versions oi weak ethical holism. And maybe most sophisticated liberals would w ant to defend versions of weak ethical individualism. VI. Conclusions Having outlined these different positions, I w ould like to propose some short ansvvers to the four problems and questions formulated above. (1) Scientific naturalism and methodological indi- vidualism seem to be close relatives: There is a historical p recedent for this idea in the w ork of Hobbes, who sought to do social philosophy analogously to physics. Moreover, methodological individualism follows the natural Sciences in recognizing only causal explanations. Furtherm ore , the Scientific concept oi a completely disenchanted nature makes it necessary to ignore the evaluative aspects of the mental. C onsequently the most respectable philosophy oi m ind vvas to construct hum an beings as individuals driven by psychic forces which could be unders tood in a naturalistic way. Of course, m uch curren t philosophy of m ind remains in thrall to the influence of this scientilic naturalism. An yet, there is no logical connection here. As the system-theory oi Luhm ann or Foucaults structuralism and some tendencies in the philosophy of Marx suggest, ontological h o - lism is also compatible with Scientific naturalism. But Scientific naturalism and m ethodological individualism are certainly 'natural allies'. (2) The relation between methodological indiv idu- alism and ethical individualism is not so straightforward . We can understand w hy there is an affinity be157 M i c h a e l Q u a n t e tween Scientific naturalism and methodological indi- vidualisoi ra ther than one belvveen Scientific na tu ra l- ism and ontological holism better il we add to ou r picture the laet that most philosophers w ho o n e n te d their philosophy according to the model of natural Sciences did so vvithin the tradition of Enlightm ent and political liberalism. D isenchanting na tu re u n d e rm in e d philosophical doctrines which tried to justify social an d po- litical order by recourse on some evaluative o rder of nature. As is clear, e.g., in the w ork oi Jo h n Stuart Mill, the additional ethical idea of personal au tonom y underlies methodological individualismi as well. Il it could be established that everything in the social w orld could be reduced to individual psychological facts, it would be far more dilficult to restrict individual autonomy. This might be done only in a contractarian, liberal, fashion . (3) To understand the relation between ontological ho- lism and ethical individualism we have to understand the direction and nature of their dependency precisely. If we could establish independently from ethical considerations that there are no irreducible social lacts, it would follovv that some ways oi justilying social or political obligations which are not reducible to individual interests will no longer be plausible. Obviously strong ethical holism woulcl no longer be an option in such a case. Hovvever, since we have reasons in d ep en d en t of ethi- cal considerations to believe that ontological holism or at least non-reductive individualism is true, it is important to recognize that ontological holism is not committed to any spectal ethical position, but is even compatible with strong ethical individualism. Hence one might argue e.g. that only those social interests that support individual au tonom y are w orthy oi ethical consideration .24 The reason why ontological holism is not com m itted to any Special ethical position, and a fortiori not to strong ethical holism, lies in two features oi 158 O n THE LIMITS O F C O N ST R U C T IO N A N D 1ND1V1DUAL1SM. ihe natu re of social realily that we m ust consider in order to answ er my fourth and linal question . (4) Are vve allowed to build ethical considerations into our social ontology? It should be noted that the nature of social reality is evaluative or normative tn several respects, although 1 agree with Gilbert that we should not regard these as moral in the narrow sense. Since ethical thinking itself is part of our social reality, the way different values, norm s or obligations are ranked and related is itself a constitutive feature oi social reality. A lthough I have argued tor the thesis that m uch of this evaluative social reality is not constructed by intentionality, social reality is open to reco n stru c tio n and im provem en t th ro u g h th o u g h t and ac tion . T his m u ch is true in constructivism . Yet, there are limits to construction and hence also limits for constructivism . These limits may be discovered only w hen we try to create social realities that enable us to lead good lives. The nature of social reality is "second nature" which is the elomain of freedom .25 This is the tru th oi constructivism and creating societies w hich m ake personal autonom y possible is, as far as 1 can see, the best way to m ake our World a place in w hich a good life may be lead. This is the tru th in ethical ind i- vidualism i. But, as 1 have tr ied to show , u n lim ite d constructivism and individualismi bu ttressed by the ideology of Scientific naturalism not only give an unsatisfying account of social ontology they may even threaten our goal of m aking a good lile possible. Notes 1 I d e a l w i th th e d i f fe re n ce b e tw e e n ih e so c ia l a n d th e in s t i tu t iona l only indirectly and wi 11 c o n cen tra te p r im ari ly on the qu es t io n of realism. So I shall h en ce fo r th speak of social reality \vithout lu r the r qualif ications m o s t o f the time. A l though ne ithe r "reality" n o r "n a tu r e " are part o f the title of th is article the no t ion of "n a tu re " shall p rove crucial to my 159 M ichael Q uante argum ents, since it m arks the limits of construction in social ontology. It is im portan t to nottce that "n a tu re " may be understood in two different senses: in a norm ative or at least evaluative sense which conccrns the essence (and perhaps telos) of social and institutional reality; and in a descriptive sense which concerns the 'naturalness' of social reality 2 Since the lahel "m ethodological individualism " is used in a variety of ways (cf. Ruben 1985), som e clarificattons are in order. First of ali. 1 take it in the classical sense that it is a metaphysical thests about w hat social phenom ena really are, nam ely that they are ju s t, or are vvholly con stitu ted by, individual persons (with beliefs, desires, and o ther m ental States) in various relattons w ith one another. This States the metaphysical thesis both in term s ot identity and constilution and takes individuals to be "natural persons". Secondly, 1 presuppose a kind of 'explanatory realism1 in the follovving. This means roughly that an explanation of a kind x can be a genuine one only if there are some entities of the kind x w hich cannot be reduced. This principle of explanatory realism is incompatible with w hat many social theonsts hold who accept m e th o d o lo g ic a l in d iv id u a l is m in th e o n to lo g ic a l or m etaphysical sense on the one hand , and believe in the explanatory autonotny of social explanations on the other hand (cf. Coleman 1990, C hapter 1). For sure, the doctrine of methodological individualism presupposes that we have criteria to determ ine w hether a fact is a social one or not, but I shall not press this question here. 3 By "brute facts", 1 m ean those included in the explanation of phenom ena given by a natural S c ie n tific a c c o u n t o f the World. I shall say a bit more about the very idea o f "brute facts" later ( 1 . 1 ). 4 P resu p p o sin g the on to lo g ica l th es is of m e th o d o lo g ica l in d iv idua lism , or the p rinc ip le of ex p lana to ry realism , reduction can be understood along the Iines of Kemeny & O ppenheim (1956) as "explanatory replacem ent" (w ithout these presuppositions a stronger notion of reduction which includes ontological claims would be needed cf. Nagel 1961, C hapter 11). 5 1 reter to Searles T h e C o n s tr u c t io n o f S o c ia l R e a lity as CSR and to G ilberts L iv in g T o g e th e r as LT. 6 A lthough I agree w ith Searle that we should overcom e the traditional dualistic conception of the m ind-body relation, I do not agree w ith his thesis that the abandonm ent of such a 160 O n t h e l i m i t s o f c o n s t r u c t i o n a n d i n d i v i d u a l i s m dualistic conception is necessary for giving a correct answer to the questions concerningsocial phenom ena. And although 1 agree with Searle in ascribing the external-realism -thesis to com m on sense and although I agree that there are m indindependent aspects of reality, I do not th ink that these thcses are crucial for ansvvering any philosophtcal questions which are Special for social ontology. To put it this way: 1 think that there are no reasons in Berkeleyan m etaphysics which make the development of an adequate analysis of social phenom ena impossible. 7 O ne further difficulty is the following: Searle m aintains that he takes '"social fact' to refer to any fact involving collective intentionality" (CSR 26) taking w e-in tentions as a sufficient condition for social facts. Thus he counts even the hyenas h u n tin g a lion as a social fact (cf. CSR 38 or 121). Now I do not know Searles view about the cognitive abilities of hyenas, but given that for som ething to count as a social fact it must be ascribed a function (CSR 19) and m ust be recognized as a social fact (CSR 34), it seems problem atic to consider hyenas h u n tin g a social fact. S om eth ing can be, to use Searles example, a war only il it is thought and accepted to be a war. But perhaps hyenas have the needed abilities so that hunting the lion really is a social laet. 8 "The notion of 'brute fact1 in this s e n s e is due to G.E.M. A nscom be" (CSR 229 In. 1 my em phasis). 9 My line of argum ent in this section is deeply indebted to McDovvell (1 9 9 4 c f . also Q uante 1998a and 1998b). 10 Yet the money-example, especially il vve th ink of the m odern forms of electronic money, shows that the general thesis that the m ental is a higher leature of the physical does no work in explaining the Special features of money. A nother example along the same Iines are persons playing chess 'blindly1. E\'en if we presuppose thai ali their moves and com m unicative acts somehovv are realized in the physical, this thesis does no work in explaining their playing chess vvithout using figures and a chessboard. We can understand what is going on here only from within the practice of playing chess. M oreover Searles general theses about the m ind-body relationship simply are not relevant here. 1 1 According to Searle the assignm ent of function, collective intentionality, and constitutive rules are necessary for an analysis of social reality. "In explaining these no tions", Searle 1 6 1 M ich a el Q u a n t e says, "1 am p erfo rce in a k in d of h e rm en eu tic c irc le" (CSR 13). The in ev itab ility o f th is h e rm e n eu tic circle is ev idence for m y c la im th at d o in g social p h ilo so p h y is b o u n d to the h e rm en eu tic stance. U nfo rtu n ate ly Searle in lects th is analysis w ith th e s e s a n d p re s u p p o s i t io n s w h ic h are d u e to th e e x p lan a to ry stan ce of n a tu ra l science. 12 "In d e p e n d e n t" m eans "logically and causally in d ep e n d en t". f his im plies a co m m itm en t to a realistic co ncep tion of features. 13 "C o n s titu tio n " m eans th at the realisa tion of the (eature is logically o r causally d e p e n d e n t on in ten tionality . 14 1 use "b e in g in te n d e d as m c lu d in g "h av in g lo reseen " in th is con tex t. 15 A lthough Searle d oes n o t State th is w ith respec t to social p h ilo so p h y especially, he agrees w ith th is c la im in general: "I actually th in k th at p h ilo so p h ica l theo ries m ake a trem en d o u s d ifference to every aspect o f o u r lives. In m y o b se rv a tio n , the re jection of realism , the d en ia l o f o n to log ical objectivity, is an essenttal c o m p o n e n t of the attacks o n ep istem ic objectivity, rationality, tru th , and in telligence in co n tem p o ra ry intellectual life." (CSR 197) 16 For su re , tln s is not the only cause for th is e rosion . E conom ic prob lem s, the pressure on trad itiona l form s of life arising from g lo b alisa tio n an d the e ro sio n of the b io log ical fram ew o rk aris ing fro m b io -tech n o lo g ies are fu rth e r im p o rta n t lactors. They ali c o n tr ib u te n o t on ly to the im p ress io n th a t o u r social w orld is fragtle bu t to the idea that it is o p en to free and u n lim ite d c o n s tru c tio n . 17 In the co n feren ce w here th is p ap er vvas p re sen ted O ta W einberger reac ted to M argaret G ilbert s su g gestion that there are good o n to log ical reasons for p o stu la tin g n o n -red u c ib le social en titie s by m ak in g just th is m ove. He replied that such an on to log ical cla im w o u ld resu lt in bad e th ica l co n seq u en ces . 18 For su re , a lte rn a tiv e w ays of s tru c tu r in g the field are possib le an d m ay he m ore a d eq u a te for d ifferen t p u rp o ses. 19 M aybe Searle s in te rn a lis tn is an obstacle for fo rm u la tin g a re la tiona l a cco u n t of the d e ep e r s tru c tu re w h ich is necessary for tlus co n s titu tio n . In the co n feren ce Searle e x p la in ed th at the su c c ess -co n d itio n s o f a w e -in te n tio n c an n o t be analysed in a pu re ly in te m a l vvay in one respect: the success o f th e reference of "w e" is d e p e n d e n t on ex te rn a l factors. Dut as far as I can see he gives us no fu rth e r analysis of the d e ep e r s tru c tu re in w h ich th is "w e " is c o n s titu ted b ey o n d the idea o f co -in s tan tia tto n . 1 6 2 O n THE L1M1TS O F C O N ST R U C T IO N AND INDIV1DUAL1SM. 20 In ihis Gilbert follows the main trend in the recent literature on love. Delaney (1996, p. 340) takes it to be a "pretty generally accepted" idea that love is a form oi fusion (cf. Friedman 1998). Even Frankfurt (1999) who explicitly does not concentrate on the special form of 'romantic love' overlooks the laet that in love we have an intersubjective basis for personal autonom y (cf. Quante (a.) for a detailed discussion oi this). 21 As her discussion makes clear she is not interested in how personal autonom y is constitu ted in acts of identification (cf. Q uante (a.) for this line of thought) but in the ethical question w hether an identification ot an autonom ous person e.g. with her country is "legitim ate" (LT 377). 22 I don t want to clatm that these concepts are irrelevant for social philosophy. Quite the opposite. But l th ink that they take for granted a basic level of our social nature which is important for social philosophy on the one hand and irreducible to individualism on the other hand (cf. also Siep 1992). 23 I use the no tion of in terest as a neu tral te rm covering everything which might be ethically relevant in the following. 24 By referring to phenom ena 1 ike loyalty, trust or love I do not intencl to make the norm ative claim that these autonom yconstitu ting relations should be taken as the sole norm ative principles for a legitimation of social or political institutions. But I \vant to hold that some problem s of legitim ation cannot be ansvvered w ithout taking these pre-au tonom ous aspects into account. 25 1 discuss the notion oi second nature, as it is usecl in the w ork of Jo h n McDovvell, as an a lte rn a tiv e to S c i e n t i f i c naturalism in Q uante (b.). References Anscombe, G.E.M. (1958): "O n brute facts." In: A n a ly s is 18, pp. 69-72. Colem an, J S. (1990): F o unda tions o f Socia l Thcory. Cambridge: The Belknap Press of Harvard UT Delany, N (1996): "Romantic Love and Loving C om m itm ent: A rticu lating a m odern ideal". In: A m e r ic a n P h ilo so p h ic a l Q u a rte r ly 33, pp. 339-356. Frankfurt, H.G. (1999): N ecessity , Volition, a n d L ove. C am brid- ge. Cambridge UP 163 M i c h a e l Q u a n t e Friedman, M.A. (1998): R o m a n tic L o v e and P e rso n a l A u to n o m y . In: Midvvest Studies in Philosophy XXI1, pp. 162-181. Gilbert, M. (1989): On S o c ia l F a c ts . Princeton: Princeton UP. Gilbert, M. (1996): L i v m g T o g e lh c r . Lanham: R owm an &r Littlefteld Publishers, Inc. Kemany, J. & O p pen he im , P (1956): "On R eduction". In: P h ilo so p h ic a l S tu d ie s 7, pp. 6-18. Kim, J. (1993): S u p e r v c n ie n c e a n d M in d . New York: Cambridge UP Lukes, S. (1992): "Methodological Individualismi Reconsidered". In: A. Ryan (ed.): T h e P h ilo s o p h y o f S o c ia l E x p la n a tio n . O x- ford: OUP, pp. 1 19-129. Mandelbaum, M. (1992): "Societal Facts." In: A. Ryan (ed.): T h e P h ilo so p h y o j S o c ia l E x p la n a tio n . Oxford: OUP, pp 105-118. McDowell,J. (1994): M in d a n d W o rld . Cambridge: Harvard UP Nagel, E. (1961): T h e S t r u c tu r e o f S c ie n c e . London: Routledge. Quante, M. (1998a): "Der Ort des Geistes". In: Z e i ts c h r i f t f u r p h ilo s o p h isc h e F o rsc h u n g 52, pp. 292-313. Quante, M. (1998b): "Die Enträtselung des BewuRtseins". In: Z e i ts c h r i f t f u r p h ilo s o p h isc h e F o r s c h u n g 52, pp. 610-633. Quante, M. (a.): "The things wc do for love". (in press) Q uan te , M. (b ): "Zuriick zu r verzauber ten N atur ohne konstruktive Philosophie?". (in press) Royce, J. (1908): T h e P h ilo so p h y o f L o y a l ty . New York: The Mac- millan Company. Ruben. D.H. (1985): T h e m e ta p h y s ic s o f th e S o c ia l W o rld . Lon- don: Routledge. Searle, J.R. (1983): In te n t io n a lity . Cambridge: Cambridge UP Searle.J.R. (1995)' T he C o n s tr u c t io n of Social R ea lity . Allen Lane: The Penguin Press. Siep, L (1992): '"G esinnung' un d 'Verfassung'. In: L. Siep: P ra k tisc h e P h ilo so p h ie im D e u ts c h e n Id e a lism u s . Frankfurt a.M.: Suhrkamp, pp. 270-284. 164 M aria Cristina Redondo ON NORMATIVITY IN LEGAL CONTEXTS I. Introduction W ith the following remarks, l basically wish to suggest two things. First of ali, I propose to apply Jo h n Searles epistemological and ontological thesis regarding institutional reality to a Central discussion in ju r isp rudence .1 1 vvill try to show that these theses are a necessary foundation il we vvant to explain the specific practical character oi law. 11 1 am right, the epistemic and the ontological the - sis of Searles theory which 1 vvill call the "social-reality th e o ry " support a certa in positivistic analysis against two classical reductionist approaches used in jurisprudence. Secondly, 1 w ould like to raise some doub ts and pose some questions about the content and the g rounds oi these ontological and epistemological theses as such. Regarding this point, I wi 11 suggest that the approach needs to be developed further. In some cases, what is needed is only greater precision; but in others, the aim m ust be to show, against possible objections, that the proposal is possible. There is an ongoing debate in legal theory about the interpretation of some typical normative properties as165 M a ri a C h r i s t i n a R e d o n d o cribed to legal dispositions.2 1 am talking about properties such as "obligatoriness", "genuine normativity", "binding lorce", "practical character", etc. These properties are predicated in order to express a kind of evaluation , which is sometimes covered by the notion of "validity ".3 Sometimes, "validity" is understood in the sense oi "binding force", and it is thought to exist only when certain mora! requisites are satisfied, where this refers to a critical or ideal, rather than to a positive morality. The ep is tem o lo g ica l status ot statements ascribing such properties, and the on to lo g ica l status of the moral properties they refer to depend on what metaethical theory one adopts. OI course, not ali legal theories admit "validity" or "binding lorce" as referring to a normative property. But what matters is to underline that vvhenever this n o rm a - tiv e meaning is at issue, whether it is admitted or rejected , it is generally regarded as a m ora l property.4 From a classical point of view, there are two alternative positions which are usually considered to be exhaustive . In one case, normativity, as binding lorce, is to be demystified or, at least, left aside I vvill call this the "skepiical position". In the other, it is a strictly moral predicate, and to determine its specific meaning requires an ethical discussion this I vvill call the "moral posi- tion". Although they start from different premises and vvith different commitments, both positions agree on the same kind oi reduction since both reject the idea that legal d ispositions may have a specific so c ia l normativity vvhich is not necessary related to a moral property but can also not be reduced merely to individual agents' beliefs. The dilference is that sk e p tic a l a p p ro a ch e s generally represented by so-called "legal realism" hold that there is nothing that can be identified as "genuine" validity or normativity, neither m the social nor in the moral sense. Consequently, those who believe in such a thing are assumed to be vvrong; and 1 6 6 O n NORMATIV1TY IN LEGAL C O N TEX TS theo r ies thai a d m it it are reg a rd e d as n o th in g b u t justif ica tory ideologies. In tu rn , m oral approaches classically re p re se n te d by n a tu ra llaw theory, b u t also by a larger class of critics of posit iv ism c la im tha t it is possible to identify "g e n u in e " valid n o rm s , th a t is, n o rm s w h ic h have "b in d in g force": they are prec ise ly w h a t is ca lled "m ora l n o r m s ". In this view, a legal sys tem is au then t ica l ly b in d in g o r no rm ative if, a n d on ly if, its c o n te n ts c o r re sp o n d w ith morality. In o th e r w ords , the basic difference be tw een the tw o perspec t ives lies in the laet tha t skep tic ism rejects ali k in d s of n o n re d u c - ible normativity , w hereas post-pos it iv is t ic app ro a ch es do a d m it one single k ind , n am ely m o ra l normativity. In m y view, these posit ions are n o t exhaustive . O ne can c o u n te r the two reduc t ion is t a p p ro a c h e s by serious ly ta k in g in to ac coun t a d im e n s io n of ins t i tu tional n o rm a t iv e facts and by exp la in ing , on th is basis, the specific way h o w law can be sa id to be norm at ive or b in d in g . T hat is to say, we can exp la in g en u in e legal n o rm a t iv i ty as an irreducib le social p h e n o m e n o n w h ic h does n o t necessarily d e p e n d o n critical morality. In sum mary , 1 th in k that, in exp la in ing the prac tica l cha rac te r oi in s t i tu t io n s in general, social-reality th e o ry also prov ides a n exp lana tion of the practical ch a ra c te r o f law in a posit iv istic way. This e x p lan a t io n does n o t resort to a n i d e a l m o r a l i t y (vvh ich vvould c o n t r a d i c t th e posit iv is tic thesis of the s e p a ra t io n b e tw e e n law and m orality ) , n o r does it im ply a m e taphys ica l co m m it- m e n t w ith a s trange k ind of en tities (w h ich vvould c o n - trad ic t its em pirica l ph i losoph ica l b a c k g ro u n d ) . In th is con tex t , 1 th in k it is im p o r ta n t to recall the d is t in c t io n betvveen tvvo dil leren t k in d s of d iscourse , vvhich are som etim es expressed in the sam e te rm s. For in s tance , even w h e n it is fo rm u la te d in descr ip tive language , the ethical d iscuss ion a b o u t the c o n d i t io n s tha t m u s t be satisfied lor an au th o r i ty to be legitim ate , or a law to be just, is e i ther a cr it ica l (eva luative) o r a m etaM a ri a C h r i s t i n a R e d o n d o physical discussion. Its purpose is neither to identify nor to explain real normative institutions. Rather, it tries to establish what would be good ju s tific a to ry reasons for creating, maintaining or rejecting such institutions. Social-reality theory does not compete with these approaches , because its purpose is a totally different one. It does not intend to offer good justificatory reasons in support oi the existence of institutions in general or specific institutional facts in particular. Instead, it competes with other e x p la n a to iy attempts, and specifically with ali dualistic or reductionist theories regarding the deontic element involved in institutional reality. With respect to this, it is generally accepted that law as a social reality is an agent-relative "reality". But precisely because of this, the normativity of law if it is not to be of a moral kind is thought to be reducible to agents' beliels. If we look at social reality, it is said, we cannot find genuine normative facts. We can find and explain only w ha t is considered to be a normative laet. Here, I think, we can see clearly where the difference of the approach oi social-reality theory lies. Social-reality theory can attempt to explain social normativity; but a reductionist approach, il it is coherent, cannot simply because it denies the existence of such a thing. II. Some necessary prernises In order to carry out my purpose 1 will mention some prernises of social-reality theory that must be taken for granted. (Although 1 will later point out some problems concerning these prernises.) a. Social-reality theory is based on a m onistic ph ilo sophical thcsis: We live in one single world. And that World is, we hope, more or less as the empirical Sci- ences describes it. 1 6 8 On NORMATIV1TY IN LEGAL CONTEXTS b. Social-reality theory is a non-reductionist theory about social institutional reality. It offers us a structure or a pattern of interpretation according to which under certain conditions we can assert the existence of a Spe- cial kind of facts, namely institu tiona l facts. This kind of reality includes human rights.5 And if that is so, then we can certainly say that it also includes legal rights, duties and povvers. c. Institutional reality is ontologically subjective. That is to say, its mode of existence depends on agents' attitudes and background capacities. But this does not mean that such attitudes are the truth-condition of a statement about institutional facts. The truth-condition of a statement about an institutional fact is precisely the in - stitutional fact referred to by the statement. Subjective ontology means only that this laet would not exist il the appropriate attitudes did not obtain. d. Institutional reality is epistemically objective. The existence of institutional facts can he objectively known. That is to say, we can determine the truth-value of statements about them. I would like to make a Comment on this first group oi ideas. In order to interpret them correctly 1 th ink it would be uselul to keep in mind a distinction between the theoretical proposal, on the one hand, and the philosophical metaphysical thesis underlying it, on the other. In o ther w ords, we must not conluse the nonreductionist thesis of social-reality theory w ith its monistic philosophical assumption. Reductionism and non-reductionism are theoretical theses regarding specilic properties or lacts. There are different kinds of reductions that a theory rnay propose or reluse, regard- ing specific objects or properties. To sustain nonreductionism about some kind of facts or properties means to distinguish the existence of tvvo kinds ot things or realities: those which are considered to be irreducible , and those to which they are said to be irreducible. 169 M a r i a C h r i s t i n a R e d o n d o In contrast, to sustain a reductionist thesis means to de ny this distinction and to defend the thesis that the first kind of entity or reality is actually nothing other than the second. In that case, there are then nol two types oi ontologies, but only one. In other words, if a theory offers a non-reductionist thesis regarding certain tacts, that means that it offers a language and establishes the conditions under which the facts in question can be said to exist. An existenttal statement in this sense is internal to a theory it must be understood in the sense proposed by the theory The metaphysical assumptions of the theory regard- ing the external World are something completely differ- ent A theory may say that, at the end of the day, there is nothing out there; or, on the contrary, that ali the theoretical distinctions correspond to independent ex- ternal realities. But the arguments lor or against a reductionist or a non-reductionist stand regarding a specific property analysed by a theory are not arguments for or against metaphysical presupposilions, such as idealism, monism or pluralism. I am not trying to say that there cannot be any logical relations between theo- retical and metaphysical theses in general. For instance, if one assumes certain metaphysical theses, some theo- retical reconstructions must be rejected as logically incompatible . But in this particular case I am saying that the theoretical recognition of two different ontologies does not imply two different external worlds. The th eo - retical Identification oi multiple kinds of entities is logi- cally compatib le with the p h i l o s o p h i c a l idealistic, monistic or dualistic background. It this were not admitted , then social-reality theory would be ab initio contradictory ; since it is trying to sustain that we can distinguish two kinds oi entities in a unique metaphysical World.6 170 O n NÖRMAT1V1TY IN LEGAL C O N TEX TS III. Legal normativity as institutional existence of rights and duties As we know, the same set of words may he uttered with a m ind - (or word)-to-world direction of (it or with a w o r ld to m in d (or -w ord ) one. By e x a m in in g the d irec tion of fit of the respective speech-acts we can determ ine w hether they constitute a directive or a descriptive use of language. To be sure, directive discourse is not always legal. In this respect, let us suppose that legal theory provides us with a sulficiently clear criterion to recognize vvhich discourse should be considered a legal one. According to social-reality theory, just as we have words for describing success or failure in achieving fit for statements, we also have words for describing suc- cess or failure in achieving fit for directive discourse. The term s for statements are "tru e" and "talse", and the terms for directive discourse are "obeyed" and "disobeyed ".7 Taking these ideas into account, it shou ld be noted, however, that obedience may not be the principal aim of a directive discourse. It may have further purposes and may therefore be evaluated in additional ways. In legal theory, it has been underlined that obedience is neither tfie only nor the principal purpose or aspiration of authorities; the main goal is rather to constitute justificatory reasons for actions. This aim is generally considered as the trait that distinguishes legal au thori- ties from a gangster. Leaving aside the discussion regarding the k ind of reasons iegal discourse intends to p ro d u c e ,8 we can say that since Herbert Hart's proposal, existing law, law, that is, whose rule of recognition is accepted is better understood as a set of justificatory reasons for action than as a set of orders backed by threats. In this line of thought sophisticated contribu171 M a ri a C h r i s t i n a R e d o n d o tions d istinguishing between mere obedience and acceptance have been developed in legal philosophy. Obedience, according to Herbert Hart, is a relationship between a lawgiver and the addressee(s) of the law. li this were the only way to evaluate legal discourse we could not unders tand the law as a con tinuous phenom enon that persists even w hen authorit ies change. h would then have to be unders tood as a set of orders related to each other by their origin in one single lawgiver . But if, for whatever reason, the lawgiver disappeared , the legal system w ould collapse and it would not be possible to say thai a new lawgiver has the right to com m and. For that to be true, the new lawgiver would first have to gain new obedience from the addressee is l . 1 m ention these Hartian ideas at this point only to emphasise that, in his view, the principal aim of law is not obedience but acceptance; only when some basic constitutive rules are accepted, we can see legal dispositions as speciiic institutional factsd In addition to this, we can say that, to a greal extent, one of the Central aims of legal clispositions is to give rise to new rights, duties and powers. To be sure, not ali legal dispositions succeed in this a ttem pt, and not ali dispositions that do succeed are legal ones. Nonetheless , it is generally acknowledged that a legal d ispo- sition reaches its goal in establishing a new duty or right when it has b inding lorce. To predicate the normativity or b inding lorce of a legal disposition means to assert the existence oi the correspond ing duties, rights, or powers. On the hasis of these ideas, a parallel can be drawn. Like "t ru th " and "obedience", "normativity" is another word of evaluation .10 Just as statements can be judged to be true or talse, and c om m ands to be obeyed or disobeyed , directive discourse in tending to create rights and duties can be evaluated as valid or invalid (binding or non-binding). In doing so, we produce statements 1 7 2 O N NORMAT1V1TY IN LHGAL CONTHX TS v a lid ity s ta te m e n ts or sta te m e n ts o f b in d in g fo rce . Such statements can, in turn, be judged as true or false. That is to say, legal dispositions are valid or invalid, and va- lidity statements are true or false. Now, il what 1 said before is correct, a non-reductionist account of the existence of rights and duties as institutional facts permits a non-reductionist account of this property va- lidity, understood as normativity or binding force with which we evaluate legal dispositions about rights and duties. Therefore, the truth of a statement predicating the validity or binding force of some ought-statement must be assessed on the basis of whether or not it corresponds with the existence of the duty in question.11 According to social-reality theory, the notion of truth must be understood in terms of "disquotation" and "correspondence ". The disquotation and the correspondence theory are both tautologically true. Once a misleading interpretation of the notions of "facts" and "correspondence " is avoided, we can accept both views as completely compatible. The (brute or institutional) facts referred to by statements are not at ali metaphysically strange objects. In this view, truth and facts are necessarily related because a laet is what makes a statement true. According to social-reality theory, 'the whole point of having a notion oi "fact" is to have a notion for that vvhich stands outside the statement, which makes it true, or in virtue oi vvhich it is true, il it is true. On this account, every statement determines its own truth-conditions ',12 and iacts are the c o n d itio n s in the World that salisfy the truth-conditions expressed by statements.13 For instance, take the follovving prescription P: P: 'Ali citizens aged 18 and older are allowed to vote in presidential elections.' Now we can ask whether this prescription P belongs to, or exists within, a given legal system. |This question corresponds to a sense of "validity" that could also be analysed in terms of institutional facts, but 1 will not 173 M a r i a C h r i s t i n a R e d o n d o discuss it here. Cf. footnote 3] Additionally, we can ask w hether this prescription is "valid" in a different sense, that is, w helher it has "b ind ing force". In the approach I am presenting now, normativity or validity in this sense m eans that the corresponding right does in fact exist. The tru th oi the validity sta tem ent 'Prescription P is valid' should he analysed in terms of disquotation. That is to say: 'Prescription P is valid' is true if, and only if, Pre- scription P i s valid. In virtue oi the correspondence theory oi truth, the "fact" that makes the statement true is the validity of Prescription P, that is, the institutional existence of the right to vote .14 It could be said that one ot the principal goals of directive language in legal contexts, as far as it claims to have binding force and normativity, is the social ex- istence oi institutional powers, rights and duties. Note, however, that neither such language by itself, nor the procedures in the context oi which it has been uttered, nor the intentions of the utterers can guarantee that the alleged rights and duties come to exist. In the approach oi social-reality theory, duties and rights can be said to exist w hen a constitutive rule is accepted and some sta- tus functions are thus assigned to certain persons or things. On that account, it may well be that a right or duty is only formally established by legal dispositions, vvithout constituting, or corresponding to, a right or a duty as an institutional fact. In this case such rights or duties are the content of legal dispositions which have been formally promulgated, but still do not exist. To the extent that the existence of these rights and duties is the tru th-condition of statements of validity, or b in d - ing force, such statements are false, that is to say, the co rresponding legal dispositions lack b inding force. By m aking this distinction we make explicit the difference betvveen the institutional existence of law or legal dis1 7 4 O N NORMATIVITY IN LEGAL C O N TEX TS positions and the institutional existence of the rights and duties that they intend to, but do not always successfully , create. IV Some general remarks on reductionism As l have already said, frotn the predominant perspective , there is only one sense if at ali in which a legal disposition may he authentically normative or binding, and that is a moral one. It must be stressed that if, in the last resort, morality is to be understood as an institutional social phenomenon , then the confrontation betvveen a moral and a social approach to normativity is merely a verbal dispute . Likewise, we would have only an apparent disagreement it m oral approaches did not intend to analyse normativity or normative institutions, but to propose - with a world-to-word direction oi fit the conditions people shou ld consider belore accepting, or refusing to accept, certain norms. On this interpretation, the moral approach would be a proposal from which we can criticise real or potential institutions. In this case, it would then be necessary to recognise that there are two genuine senses oi normativity, namely social institutional normativity, and rational or moral normativity that is a regulating idealV However, most legal theorists reject this last proposal and consider that there is only one sense of genuine or non-reducible normativity, and that ascribing normative or practical force to social institu- tions independently of critical moral requirements amounts to a fallacy committed by ideological positiv- ismi. In virtue of what has been called the principle of the unity of practical reason, for something to be a genu- ine duty, it must be in last resort a duty in a moral sense.10 From this point of view, social authorities attempting to establish duties, rights and powers, even it they are 175 M a r i a C h r i s t i n a R e d o n d o accepted, do not succeed in their a ttem pt w hen they do not conform to moral requirements. Ali this amounts to a real disagreement betvveen the moral approach and the social-theory approach; because from the former point of view, in order to unders tand and identify authentically normative facts or b ind ing norm s we must rely on metaethics and a critical morality. From the perspective oi social-reality theory we only need a philosophy of society and a theory ot institutional social lacts. Here, an interesting point must be underlined. Moral approaches do not deny that socially accepted norms exist. W hat they say instead is that if the content of such accepted norm s does not conform to moral standards, their practical character, or b inding force, can be reduced to pure coercion or false beliefs. But, on this hypothesis, such social rules cannot be genuine reasons for action. Sum m ing up, the alternative is the following, normativity is to be understood as a moral property or as sheer coercion plus beliefs. Against this alternative, we need an argument for uphold ing the recognition oi a genuine non-reducible social n o rm - ativity. On the one hand, according to social-reality theory, the continuous acceptance of the m em bers ot a group is strictly necessary m order for institutional normative reality to exist. This is not a claim about the m eaning with which people use normative language from an internal point oi view. Nor is il a claim about participants' beliefs. The participants may not be aware ot it, or ihey might thm k that the accepted rules have binding force independently of the attitudes oi h u m an beings.17 So- cial-reality theory is an external18explanation com patible with the fact that, from an internoi point oi view, participants attach different k inds of m eaning to statements about powers, duties, prohibitions and rights.ig In order to explain the practical character of authori- tative language regarding duties and rights as the insti176 O n NORMAT1V1TY IN LEGAL CO N TEX TS tu t io n a l exis tence of the r ights a n d d u l ie s th a t they propose , this ap p ro a c h d o e s n 't requ ire d ia t p a r t ic ip a n ts believe in the arb it ra r iness of these r igh ts a n d du tie s (as w o u ld be requ ired by a strict con v e n t io n a l is t recon- s t ruc t ion) . In laet, it ne i th e r requ ires th a t par t ic ipan ts believe tha t they are c o n s t i tu t in g rights as inst itu tional facts n o r tha t they believe in the ex is tence of these facts as m e taphys ica l entities. Ali it r equ ires is that par t ic i - p an ts assign these s ta tu s func t ions , for w h a te v e r reasons they m ay have. Only after cer ta in in s t i tu tional facts com e to exist, the beliefs referring to th e m can be evalua ted as objectively true o r false. In the exam ple , participants m u s t accep t that 'x (being a Citizen aged 18 or o lder) c o u n ts as y (having the right to vote) in context C ', a n d it is irrelevant vvhether they th ink that it cou ld have been othervvise, or that it o u g h t to be tha t way, for necessary m oral reasons. The im p o r ta n t point hete is that social-reality theo ry can exp la in the existence of these rights, even il they are cons idered a m atte r of conviction or a rb it ra ry c o n v e n tio n .20 The inst itutional theory m atches well in b o th cases.21 O n the o th e r h an d , ac co rd in g to social-reality theory, we live in one single World at m o s t .22 We m u s t ab a n - d o n the idea that there is a nrental World bes ides o u r physical one. In the same vein, we m u s t a b a n d o n the idea that there is a realm oi ough t {'ein Reich des Sollens') a longside the physical one. In o th e r w o rd s , we sh o u ld ren o u n c e the classical is /ought d is t inc t ion as m e tap h y s i - cal. N evertheless , this last thesis does no t im ply tha t we c a n n o t , from a theoretical po in t of view, d is t ingu ish diflerent k inds oi entities that we can c la im to exist w h e n the co n d i t io n s stated in the respective th e o ry o b ta in .23 W e th u s d o not need to reduce o u r m e n ta l o r in s t i tu - tiona l no rm at ive reality in o rd e r to be co h e re n t w ith the rejection oi m etaphysica l dua l ism . M ental an d n o r - mative reality can exist ac co rd in g to a theory, w i th o u t m e taphys ica l consequences . 177 M a r ia C h r is t in a R e d o n d o To consider different kinds of reductions in Searles approach, we should move on to the arguments presented in his T h e R ed is c o v e ry o f the M i n ä .24 In this work, we can find a reflection about why we are able to reduce phenomena as heat, sound, color, solidity, etc. to their physical foundations, while we are unable to do the same regarding mental entities. Concerning the question 'Why do we regard heat as reducible and päin as irreducible? The ans\ver is' Searle says - 'that what interests us about heat is not the subjective appearance but the underlying physical causes.'25 Extendmg this argument to normative reality, we can say that our interest in some contexts is directed towards its ob jec t ive appearance rather than its underlying su b je c t ive hasis. Regarding consciousness, Searle observes: Part oi the point ot the reduction in the case of heat was to distinguish between the subjective appearance on the one hand and the underlying physical reality on the other. lndeed, h is a general feature for such reductions that the phenomenon is dehned in terms of the 'reality' and not in terms of the 'appearance'. But we can't make that sort oi appearance-reality distinction for consciousness because consciousness consists in the appearances themselves. W h e r e a p p e a r a n c e is concern ed \ve c a n n o t m a k e the a p p e a r a n c e - rea l i ty d is t inc t ion bec a u se the a p p e a r a n c e is the reality.20 li we keep this idea in mind, we can realise that the same may be said about normative phenomena ot rights and duties. We cannot make the appearance-reality distinction for normative lacts, such as the existence oi rights or duties, because they consist in the appearances themselves. Following the parallelism we should say that, oi course, the reduction is possible. 'Surely when you get down to brass tacks, there are no real facts'.27This is so because 1 7 8 O N NORMAT1VITY IN LEGAL C O N TEX TS this non-reductionism does not reflect any metaphysically necessary feature, bu t a trait of our definitional practices .28 The interesting point to remark is that if the parallei to the non-reducibility of mental entities can be drawn, we can say something more about the recognition of a specific institutional normative reality. We cou ld try to reduce and redefine institutional normative properties like binding force in terms oi what is believed or considered to be binding, just as we redefine "red", in a reductionist way, as the reflection of light of a speciiic kind. But this would not mean that we eliminate the appearance of normativity (as we also d o n t really eliminate the subjectivity oi red), it would simply mean that we stop calling them by their old names.2g V Some epistemological and ontological remarks 1. In s t i tu t io n a l reality is e p is te m o lo g ic a l ly o b jec t ive . It is, we could say, a cognitivist thesis about institutional re- ality. That som ething can be objectively know n entails that statements about it are true or false, or that questions about it have a correct anscver. Objective knowleclge supposes that 'disagreement does not underm ine the thesis that there is a fact oi the matter awaiting discovery . Rather, such disagreement suggests a fault oi at least one of the interlocutors'.30 In social-reality theory, the contrast between epistemic objectivity and epistemic subjectivity is a matter of degree .31 Hence, institutional reality can be objectively know n on ly if collective acceptance and the practice support ing it are also clearly established. Even il this is apparently simple and sound , 1 think that some difficulties arise w hen we distinguish betvveen a c t c a te g o r ie s and a c t i n d i v i d u a ls , }2 or between institutions and the general rights and cluties related to them 179 M a r ia C h r is t in a R e d o n d o on the one hand, and individual instantiations of such institutions, on the other. The problems we may encounter here are oi different kinds. We may be uncertain about the truth-value of a "pure s ta tem ent" regarding the very existence of an insti tu tion .33 This may be the case, for instance, w hen acceptance is not yet, or no longer, clearly established. Uncertainty, however, does n o t m ean in d e te rm in a t io n . We can still m a in ta in bivalence regarding this k ind oi statements. That is to say, we can stipulate that statements about the exist- ence of an institution for instance, Commercial transaction or donation are objectively true il the insti tu- tion has reached a certain level x of acceptance, and that they are talse in ali o ther cases. O ur ignorance about this iact, that is about the level of acceptance, does not u nderm ine the truth-value of propositions about the existence oi the institution. There may, however, arise a d d i t io n a l p ro b lem s re la ted to the t ru th -v a lu e of "applicative statements" referring to individual instances oi some clearly existent institution for instance, concerning w hether some agent A on a particular occasion has perform ed a Commercial transaction or a donation, and w hat the corresponding rights and duties are. This is so, first of ali, because the concepts referring to insti- tutions and the rights or duties related to them may be vague; and secondly, because there may be unresolved conflicts betvveen equally valued rights and duties, or betvveen incom m ensurable ones .34 Here social-reality theory leaves room for discussion. For example, regarding the problem of vagueness, there are two classical approaches. From one point oi view, indeterminacy is an epistemical problem. Perhaps it is not ahvays possible to know the truth-value of some propositions, but this does not mean that they do not have any. Indeterminacy, in this view, is a lack of knowledge , and that presupposes that there is som ething to be know n. O n the second approach, the indeterminacy 1 8 0 O N NORMAT1V1TY IN LEGAL C O N T E X T S of a proposition is a semantic problem. For instance, imagine a transaction X where, taking into account ali the relevant characteristics of X, we cannot determine vvhether it is a sale or a clonation. The problem is that the m eaning of "sale" and "dona tion" is partially indete rm in a te . There will a lways he b o rd e r l in e cases. Propositions about borderline cases are semantically indeterminate; that is to say, they are neither true nor false.35 For social-reality theory, it is an op en q u es t io n vvhether or not epistemological objectivism regarding insti tu tional facts implies that any single pure or applicative proposition about social reality has a truthvalue . On the one hand, objectivism suggests bivalence, and that implies that the ansv/er to the question is, Yes, they do. O n the o ther hand, the gradual nature of the objective-subjective distinction, the general problem oi vagueness, Irom which our statements cannot escape, as well as the possibility of genuine conflicts suggest that the ansvver in these cases should be No, institu- tional statements referring to such cases lack truth-value. Sum m ing up, as lar as the explicit thesis of socialreality theory goes, it seems compatible with bo th classical opposite ansvvers regarding borderline cases and unresolved conflicts. In principle, we can say that this does not represent any problem to the theory. The only purpose of this remark is to underline that these doubts reflect others about the special ontological status of this kind of reality. Usually, epistemic objectivism regard- ing normative facts which are non-reducible to empirical reality has been associated with a problematic ontology , namely an ideal reality that can be kno w n objectively because it is ontologically objective, that is to say, it exists independently oi hum an beings. To conserve an objective epistemological thesis regarding a gradually m an-m ade reality may have paradoxical consequences for applicative statements if semantic and 181 M a r i a C h r i s t i n a R e d o n d o valora tive d isa g re em en ts a b o u t ih e m are, as seem s to be the case, unavo idab ie . 2. N o w 1 w an t to m ove o n to a n o th e r po in t c o n c e rn in g the onto log ica l a n d ep is tem olog ica l thesis of social-reality theory. ln s t i tu t io n a l reality exists because of the a c cep tance a n d prac tice of agents . It is an agent-re la - tive reality a n d , in th is sense, it is on to log ica lly sub jec- tive. O n ly il the (sub jec tive ) c o n d i t io n s of ex is tence o b ta in , ob jec tive t r u th ju d g e m e n ts are possib le . For ex a m p le , w h e n can we tru ly say tha t A is an au tho r i ty or B is a d u ty w i th in a g iven g roup? The an s w e r is: W h e n it is an in s t i tu tiona l fact th a t A is an au th o r i ty or that 6 is a d u ty vvithin th a t g roup . At th is po in t , w ha t m a tte rs is not the issue oi d e te m i in in g w h o or h o w m any agen ts sh o u ld sus ta in an ins t i tu t ion in o rd e r to m ake su c h s ta te m en ts objectively true . The in te res t ing po in t here is tha t we are a l low ed to State tha t it is objectively true tha t A is an authority , o r that B is a d u ty for the m e m b e r s oi the g ro u p as a w ho le , even if no t ali the m e m b e r s of the g roup do accep t the respective in s t i tu - tion. This a sy m m e try em erges because social en tit ies are n o t str ic tly sub jective m en ta l ones. A feeling of pä in exis ts il one agen t leels päin . The ex is tence oi this feel- ing is relative on ly to tha t agent, a l th o u g h it can be objectively recognized or knovvn by others . ln st itu tional facts, in con tras t , do no t exist relative to each agent; at least that is clearly sugges ted by the fact tha t w e charac terise th e m as "soc ia l" lacts. H ence, un less w e are vvilling to a d m it tha t social en t it ies exist m ere ly in relat ion to each single ac ce p ta n t (in w h ich case we sh o u ld s to p charac te r is ing th e m as part ot a soc ia l reality), we are iacing a p ro b le m ot asym m etry . Lets su p p o se tha t 1 reject the ins t i tu t ion of authority. Il th e sen tence 'A is an au th o r i ty in g roup G' is objec- tively true , th e n 'A is an a u th o r i ty lor m e ' is also objec1 8 2 O n n o r m a t i v i t y i n l e g a l c o n t e x t s tively true, provided I am a m em ber of group G. This m ean diat according to this theory, that authority, with ali its practical consequences, exists in relation to me even if 1 do not accept it. At this point it is easy to slide into a futile discussion abont the "real" existence of an au thority if we do not rem em ber the different directions oi fit with which the same words can be used. W hen we affirm that according to the premises of social -reality theory, A is an authority also for me or relative to me, even il 1 do not accept the institution of authority, this does not mean that the theory assesses this fact as a morally good thing. Nor does it mean that l shou ld accept the authority simply because it is an institutional normative fact according to the theory. The theory olfers a language in which we can identify and explain that k ind of reality. Its purpose is not to explain what 1 think, or should think, as a m em ber oi the relevant group. It offers a reconstruction accord ing to which we can state that, in the example, A is an au thor- ity that will have practical consequences even for those that reject it. In this context, it is perhaps useful to introduce a distinction which was originally drawn with a different pu rpose .30 The existence of som ething may be subjective in two different senses. It is possible to distinguish betvveen existence r e l a t i v e to someone and existence in vi i l u t : o i someone. In the first sense, that something exists subjectively means that it exists only tor, or in relation to, a person or g roup of persons. To say that something is relative to some group does not teli us anything about why it exists or what the necessary conditions lor that existence are. In particular, it does not teli us vvhether it exists because it is accepted. This first k ind oi "subjectivity " implies a threshold beyond which the ontological claim vanishes. From this point oi view, a mental entity is relative to one person while institutional facts are always relative to a group. This means that 183 M a r ia C h r i s t i n a R e d o n d o such facts exist only within groups and do not exist outside of them. The second sense of "subjectivity" stresses the fact that agents' attitudes eonstitute a necessary condition for the existence of an institutional fact. To say that an ohjeet is subjective in that sense is to say that it would not exist if the person or group oi persons in question did not have the right attitudes. From this point of view, institutional reality exists in virtue of the acceptance of certain individuals and not in virtue oi the acceptance of the whole group .>7 Social-reality theory asserts that institutional entities are subjective in both senses, but it does not say that the members oi the group must be aware oi that. Hence, the fact that narticipants b e l i e v e that their institutions exist in a non-relative way, independently oi any agent's attitudes, does not refute the explanation. An ohjeet can be subjective in both of the senses mentioned even when that subjectivity is denied by the agents in relation to whom that object ex- ists and on whose attitudes it depends. Summing up, institutional reality is subjective because it exists r e la t i v e to a social group. In this sense, it is relative to a l i agents belonging to the group. But it is also subjective because it exists in v i r t u e o f certain agents, namely those who give their acceptance. This may seem a purely 1 inguistic movement, but 1 think it might be relevant to stress the difference. A may well be an authority in r e la t io n to myseli and relative to my actions, vvithout being at the same titne an authority in v i r t u e of my actions and myself.38 3. Finally 1 \vish to say a lew words about the transcendental argument for external realism on which socialreality theory is founded. This argument does not refer to institutional reality. It only shows that institutional facts which depend on our representations presuppose a different kind of reality independent of any rep184 O n NORMAT1VITY IN LEGAL C O N TEX TS resen ta t ion . It is w orth n o t in g th a t , first of ali, ihe p lau - sibility ot the a rg u m e n t for ex te rna l realism d o es no t ex c lu d e the p lausib il i ty of a n o th e r a rg u m e n t for ex te r - nal moi ai realism, w h ic h does no t reject the first, h u t r a th e r c o m p le te s it w ith the recogn it ion of a n ob jective no rm a t iv e reality In fact, m e taphys ica l realism a b o u t g e n u in e no rm ative p roper t ie s (w h ich are usua lly co n - ce p tua l ly assimilated to m o ra l ones) rejects n e i th e r e x - te rna l physical realism n o r a c o r re sp o n d e n c e th e o ry of t ru th . Secondly, the a rg u m e n t for ex terna l realism is even m ore com patib le w ith a sub ject ive r e d u c t io n is t v iew of inst i tu t ional no rm ative reality namely, the one \vh ich I h ad called the "skeptical a p p r o a c h ". This is no t a lault of the a rg u m e n t for ex terna l reality as it is p rese n ted in social-reality th e o ry because it d oes n o t in te n d to be an a rg u m e n t for m o n is m th a t is to say, for the existence of on ly one ex terna l reality or n o n re d u c t io n ism co n c e rn in g ins t i tu t ional reality tha t is to say, for the recognition of ins t i tu t ional n o rm a t iv e facts vvhich can be d is t in g u ish e d i rom the sub jec t ive a t t i tu d e s on vvhich they d e p e n d . In o th e r vvords, th is a rg u m e n t is no t a s u p p o r t for the tw o Central theses here d iscussed ; because it is no t d irec tly re levant in the d iscuss ion a b o u t the on tological sub jective thesis a n d the ep is te m o lo g ic a l ob jec tive thes is r e g a rd in g in s t i - tu tional reality It says n o th in g a b o u t re d u c t io n ism a n d n o n re d u c t io n ism oi a specific inst i tu t ional ontology. Likevvise, it says n o th in g to those vvho ho ld tha t a long- side the ex terna l physical World the re is ano ther , n o r - mative w orld in d e p e n d e n t oi the first. In a w o rk dev o ted to ins t i tu t ional n o rm at iv e facts, instead of th is clear a rg u m e n t for the ex is tence of an o b je c t iv e i n d e p e n d e n t rea l i ty it w o u l d h a v e b e e n des iderab le to find an a rg u m e n t for th is special sub jec- tive-objective in s t i tu t ional reality. I am no t a sk in g for a n o th e r t ran sc e n d e n ta l a r g u m e n t a b o u t in s t i tu t io n a l reality. It cou ld be su s ta ined tha t a th e o ry w h ic h ex185 M a ri a C h r i s t i n a R h d o n d o plains the structure and the conditions of existence of such entities just like o ther theories abou t entities li ke electrons, numbers, mathematical relationships, and so on does not need to produce a transcendental argum ent for the acknow ledgm ent of these entities. A theo rys success or failure depends on its capacity to account for the problems it intends to explain and to iormulate useful hypotheses about them. In o ther words, there is no need for a philosophical argum ent for every theoretical distinction. l-fowever, as a theory abou t so- cial reality the theory un d e r scrutiny com petes wtth various o ther theories, w hich are philosophically compatible with it, that is, theories which accept m onism , external realism and the correspondence theory of truth, bu t w hich explain the structure and the emergence of institutional normativity in o ther ways. C oncern ing this point, I would like to go back to som eth ing f have said earlier. In practical philosophy, there are two classical approaches to the ontology of norm s, which may be extended to the ontology of rights a n d du ties . I have called th em the m o ra l a n d the skeptical approaches. As 1 already said, they are usually considered to be not only mutually exclusive, b u t also exhaustive. In o ther vvords, it is assum ed that there is no logical space for a third approach. On this view, we can be either realists (empiricists) or idealists regarding norm s, rights or d u t i e s .R e a l i s m is necessarily connected vvith monism, but also with reductionism about normative properties. O n the opposite side, the analysis of n o r m s as id ea l e n t i t i e s a m o u n t s to n o n - reductionism , bu t it is at the same time com m itted to the existence of an independen t ideal world. Considering this classical dichotomy, we must produce an argu- m ent to show the possibility of that logical space in w h ich monism does not imply reductionism , an d nonreduction ism does not imply dualism. W ithou t such an argum ent, a Central critique of the social-theory ac1 8 6 O n NORMAT1VITY IN LHGAL C O N TEX TS count of normative social reality says that it is logically impossible. If we take its non-reductionism seriously we must accept dualism. If we take its commitment with monism seriously we must be reductionist regarding ali non-physical properties. In other words, vve must still argue for, and not only assert, the thesis that we live in o n l y o n e s in g le World, because this does not lollow from the transcendental argument tor an external wotid. We must not overlook that on a ditferent account, external moral realism is considered to be the best explanation (or non-reducible normative properties.40 The commitment with the existence ot an objective moral reality, together with the thesis that social institutions are normative insofar as they correspond or in some way relate to that moral reality is not a new theoretical proposal. It is a philosophical thesis that contradicts the assumptions of social-reality theory. Its implausibi 1 ity is not shown by merely asserting that we live in only one single vvorld it must be shown as the result oi an argument. Therefore , a general argument for non-reducibility of social normativity and against dualism seems to needed if we are to debate as 1 think we should with those who sustain alternative positions. This argument is a necessary hasis il we want to defend as 1 have intended here that an institutional approach constitutes the only coherent foundation oi a positivistie conception about legal normativity as a possible genuine property, which does not depend on morality. Notes 1 I will refer especially to: Searle 1995. 2 1 wi 11 use the tern ts "legal n o r m " a n d "legal d i s p o s i t io n " indiscrim inately to refer to m eaningfu l language in te n d in g to prol iib i t or to m ake obliga tory soine c o n d u c t , o r to confer a p o w e r in legal contexts. 187 M a r ia C h r is t in a R e d o n d o 3 O f course, here I am not talking of validity as a systemic relation internal to law reconstructed as a system. 1 am aware ot the fact that m investigations about the structure of legal systems "validity" is understood in this latter sense. 4 It is im portant to take note of the am biguity of the word "norm ativ ity". In a very w ide sense tt refers to ali language w ith a w orld-to-w ord direction of lit. In a narrow er sense, it relers only to the practical nature or b inding force w hich 1 intend to discuss now. In the first sense, ali legal dispositions explicitly in tended to p roh ib it, obligate or em pow er are norm s. In the second sense, not ali of them are norm ative, because even if they intend to, not ali of them succeed in constituting a right, a duty, or a power. Thus, legal dispositions may he assessed as having binding force or normativity. The ontological and epistemological status of this property is what 1 in te n d to analy se . R egard ing th is is su e , L agerspetz d istinguishes betw een "rules", "norm s", and "obligations". I will be concerned vvith the practical force w hich is a necessary elem ent of obligations bu t a contingent elem ent of norms. Cf. Lagerspetz 1995, pp. 14 f-142. 5 Cf. Searle 1995, p. 93. 6 I am su g g es tin g th a t the irred u c ib ility of in s titu tio n a l n o rm a tiv ity is in d e p e n d e n t oi a m o n is tic or dua lis tic m e ta p h y s ic a l th e s is . F or e x am p le , one co u ld acccp t m etaphysical realism regarding moral properties and still explain social norm ativity as an irreducible institutional fact Independent of moral properties. 7 Cf. Searle 1995, p. 215. 8 Central on this issue is the proposal of Joseph Raz, which has given rise to many others contributions. See especially Raz 1990. In resum ed terrns, we can say, following M acCornnck, that by taking into account the force of the rules il is possible to distinguish 'rules of absolute application', 'rules of strict application', and rules ot discretionary application'. The first and the second correspond to Razs and to Schauers models, respectively. The third one corresponds to rules of thum b. A ccording to M acCorm ick, we should recognise that these lasi ones have a specific force as tie-breakers when the balance of reasons does not determ ine a result. Cf. M acCormick 1998, pp. 316 -3 1 8 . 9 U sing the schem a provided by social-reality theory we can in terp re t the rule ot recognition as the constitu tive rule 1 8 8 O n NORMATIV1TY IN LEGAL CONTEXTS acceptance of vvhich allows us to identify the laws which belong to and have to be applied in a legal system. 10 For a different analysis of this property cf. Celano 1999. 1 1 Regarding ontology in the legal context, cf. also Coleman and Leiter 1995. f 2 Cf. Searle 1995, p. 215. 13 Cf. Searle 1995, p. 211. 14 It might be said that there is a similarity betvveen the results of application oi Searles theory and Kelsens theory of law. But although it is true that Searles theory enables us to explain as institutional facts both the existence of legal norms and the existence of rights and duties, we should not therefore confuse the two things. As explained above, tf a legal norm has no binding force, it does not give rise to a right or obligation, even though it may exist. Kelsen's theory, in contrast, has been criticized precisely for conlusing two different meanings of "va lid ity" , that is, lor equating the existence of a legal norm with the existence oi the duty to do what that norm says. 15 O f course, as far as metaethics engages in ontological reflections, there are many specific metaethical theories that contradict the monistic ontological thesis. 16 Cf. N ino 1991, pp. 16-24. 17 AVhere the institution demands more of its participants than it can extract by force, where consent is essential, a great deal oi pomp, ceremony, and razzmatazz is used in such a way as to suggest that something more is going on than simple acceptance of the formula XcountsasY in C.' Cf. Searle 1995, p. 1 18. 18 In fact this is an example of a 'non-extreme external point of view' or hermeneutic point of view'. Cl. MacCormick 1981, p. 38. Also, MacCormick 1986, p. 104. 19 lt isimportant to admit that the agents who participate in the practice can use the institutional words -"authority" , "righis" , "money" and the like w ith a meaning that does not correspond to the reconstruction provided by social-reality theory. 11 this were not the case (for instance, il ali participants in the practice of authority vvere to reject the idea that the concept oi authority implies that they are believed to be, or regarded as, such authorities), the theory would have to admit that authority is not an institutional fact. We must remember that for social-reality theory, for instance, part of the content 189 M a ri a C h r i s t i n a R e d o n d o of the claim t liat som ething is money is the claim that it is believed to be m oney'. If ali participants refuse the claim, there are only two alternatives, namely: to say that m oney is not, m this case, an institutional fact or, as I am suggesting, that the participants use the Word w ith a m eaning w hich is different trom the reconstruction proposed by the theory. Regarding this issue, cl. Celano 1999. 20 On this subjetc 1 am referring to the well know n discussion related to Ronald Dvvorkins criticism regarding convetionalist approaches to lavv. Cl. Dvvorkin 1986. 21 It is obviously true that m any aspects that can be analysed with this theory can also be analysed with a stnct conventionalist theory. But it is also true that social-reality theory can explain more than the conventionalist approach. For example, cases where the arbitrariness clause does not obtain, or the case in w hich institu tions em erge independen tly of any coordination problem . 22 Cl. the quote oi Davidson in Searle 1998, p. 144. 23 Carnap 1952. 24 Searle 1992. 25 Ibid. p. 120. 26 Ibid. pp. 121-122. 27 Cf. Searle 1995, p 45. 28 l take this argum ent as a good one, even il linguistic practices have been considered as an insufficient basis lor preventing reductionism . C.1. Sabates 1999. 29 Searle 1992, p. 123. 30 Shafer-Landau 1994. 31 Cl. Searle 1995, p. 8. 32 von Wright 1963. Also, Searle 1995, p. 32. 33 1 take this category from Joseph Raz. We can say that true or lalse s ta te m e n ts ab o u t in s ti tu t io n s are e ith e r p u re o r applicative. A statem ent is pure il the existence of an institu - tion suffices to make it true. It is an applicative statem ent il there is an institution and an individual laet, vvhich together are suflicient to make it true, while none ot them separately suffices to do so. Joseph Raz talks about norm ative, rather than institutional statem ents. Cf. Raz 1980, pp. 49 and 218. 34 This could be presented w ith the language ot Joseph Raz. Raz affirms that in virtue oi the social sources of legal rights, powers and duties, there are certain kinds of inescapable gaps, vvhich correspond to statem ents about rights, povvers and duties having no truth-value. They arise vvhen the language 1 9 0 O n NORMATIV1TY IN LEGAL C .ON TEXTS of rights, dutics and powers is sem antically indcterm inate or w hen there are unresolved conflicts. Cf. Raz 1979, pp. 5 3 - 77. 35 von Wright 1996. 36 Cf. Sosa 1993, p. 621. 37 Institutional facts require acceptance by a sub-group or some relcvant individuals. Cf. Lagerspetz 1995, pp. 6 and 156. 38 Note that il Searles theory defined 'au thority ' (or any other institutional concept) as that which is subjectively considered to be an authority; it would have a logical problem . In the exam ple, provided that 1 do not considerx to be an authority, 'x is an authority' would be (alse regarding to me; but it would at the same time also be true, provided that it is objectively true that x is an authority relative to the group and it is also true that 1 belong to the group. 39 Cf. von Wright 1969, pp. 89 -90 . 40 Cf. Moore 1982 and 1989; Brink 1989; H urd 1990. Literature Brink, David (1989). M o r a l R e a l i s m a n d th e F o u n d a t i o n s o f E th ics . Cam bridge, Cambridge University Press. C arnap, Rudolt (1952). Empirism, Semantics and Ontology, pp. 20 8 -2 3 0 in Leonard Ltnsky (ed .),S e m a n t i c s a n d the P h i lo so ph y o f L a n g u a g e . Urbana, lii., University of Illinois Press. Celano, Bruno (1999). V a l id i ty a s D i s q u o t a t io n . M anuscript. - (forthcom ing). Collective Intentionality, Self-Referentiality, anti False Beliefs: Some Issues C oncerning Institutional Facts. A n a l y s e & K r i t ih 2 l (2). Coleman, Jules and Brian Leiter (1995). Determinacy, Objectivity and Authority, pp. 203 -278 in Andrei M armor (ed ), L a w a n d I n t e r p r e ta t i o n : E s sa y s in Le g a l P h i lo s o p h y . Oxford, C larendon. Dvvorkin, Ronald (1986). l . a w 's E m p ir e . C am bridge, Mass., Har- vard University Press. H urd, Heidi (1990). Sovereignty in Silence. Yale L a w J o u r n a l 99, pp. 945 -1 0 2 7 . Lagerspetz, Eerik (1995). T h e O p p o s i t e M ir r o rs . A n E s s a y o n the C o n v e n t i o n a l i s t Theory of In s t i tu t i o n s . D ordrecht, Kluvver. M acCorm ick, Neil (1981). Social Rules, pp. 29 -44 in id., H . L A. H a r t . London, Edward Arnold. 191 M a r i a C h r i s t i n a R e d o n d o - (1986). On A nalytical Ju risp ru en c e , pp. 9 3 -1 0 9 in MacCormick, Neil and Ota Weinberger, A n In s titu tio n a l T h eo iy o f Law. N e w A p p ro a ch e s to Lcgal P ositiv ism . Dordrecht, Reidet. - (1998). Norms, Institutions and Institutional Facts. L aw a n d P hilo sophy 17, pp. 301-345. Moore, Michael (1982). Moral Reality. Wisconsin L aw R ev iew , pp. 1061-1156. - (1989). M o r a l R e a lis m as th e B est E x p la n a t io n o f M o ra l E xp e rien ce . Discussion Group of Southern California Legal and Pohtical Philosophers Jan u ary 1989. Nino, Carlos S. (1991). T he E th ics o f H u n u in R ights. Oxford, Clarendon Press. Raz, Joseph (1979). T he A u th o r i ty o f Law. Es s a y s on L aw a n d M o ra lity . Oxford, Clarendon. - (1980). T he C oncep t o f Legal S ys tem . An In tro d u c tio n to the T h e o ry o f Legal S ys tem s . 2nd ed. Oxford, Clarendon. - (1990). P ractica l R casons a n d N o rm s . 2nd ed. Princeton, NJ, Princeton University Press. Sabates, Marcelo (forthcoming). Consciousness, Emergence and Naturalism. Teorem a (XVIII) 1. Searle, John (1992). The R ed isco very oj the M ind . Cambridge, Mass., MIT Press. - (1995). T he Construction o f Socia l R ea lity . London, Penguin. - (1998). Social Ontology and the Philosophy oi Society. A na lyse & K ritik 20, pp. 143-158. Shafer-Landau, Russ (1994). Ethical Disagreement, Ethical O bjectivism and Moral Indeterm inacy. P h ilo s o p h y a n d Phenomenological Research LIV (2), pp. 331-344. Sosa, Ernest (1993). Putnams Pragmatic Realism. T he J o u rn a l o f P hilosophy 90, pp. 605-626. von Wright, Georg Henrik (1963). N o rm a n d A c tio n . New York, Routledge and Kegan Paul. - (1969). On the Logic and Ontology of Norms, pp. 89-107 in J.W Davis, D.J. Hockney, and WK. Wilson (eds .),P h ilo soph ica l Logic. Dordrecht, Reidel - (1996). Truth Logics, pp. 71-91 m id., Six Essays in P hilosoph ica l Logic. Helsinki, Acta Philosophica Fennica, voi. 60. Waldenfels, Bernhard (1998). Comment on John Searles The C o n stru c tio n of Socia l R ea lity . A n a ly se & K ritik 20, pp. 159165 . 192 Paolo Comanducci CONFRONTING TW O CONSTRUCTIVISTS I. Introduction en 1 began to read The Construction o f Social Reli ty,1 for the first t im e, I was am az ed by the similarity be lw een the s ta r t ing po in t of th is b o o k a n d the s ta r t ing point of H ans K elsens Päre Theory o f Law.2 It seem s to me tha t bo th a u th o rs are facing a lm os t the sam e p ro b lem , bu t from the very b e g in n in g of the ir b o o k s they solve it differently. Even th o u g h , probably, the d ifferences betw een the Solutions they p ropose are no t as d e e p as may a p p e a r at first sight. In the following , I will critically co m p are th e ir Solutions, and th e n 1 vvill co n tra s t b o th oi th e m w ith Ali Rosss alternative. Kelsen, in the second ed i t ion oi Pure Theory , lacing the ques tion of 'vvhether the sc ience of law is a n a tu ra l o r a social science; vvhether law is a na tu ra l o r a social p h e n o m e n o n ',3 he writes: '[...] the c lean de l im ita t ion be tw e en na tu re and Society is no t easy, because Society, u n d e r s to o d as the actual living to g e th e r oi h u m a n s beings , m ay be th o u g h t of as pa r t of life in general and h en ce of na tu re . Besides, law (...) seem s at least partly to be roo ted in nature an d to have a "n a tu r a l" existence. F or if y o u analyze any b o d y of facts interpretecl as "le193 P a o l o C o m a n d u c c i gal" or som ehow tied up with law, such as a parliam entary decision, an administrative act, a judgm ent, a contract , or a crime, tvvo elements are distinguishahle: one, an act or series of acts a happen ing occurring at a certain time and in a certain place, perceived by our senses: an external manifestation of h u m an conduct; two, the legal m eaning ot this act, that is, the meaning conferred upon the act by the law. For example: People assemble in a large room, m ake speeches, some raise their hands, others do not this is the external h a p - pening. Its m eaning is that a statute is being passed, the law is created. [...] A m an in a robe and speaking from a dais says some words to a man s tanding before him: legally this external happen ing means: a judicial decision was passed. A m erchant writes a letter of a certain content to another merchant, who, in tu rn answers with a letter; this m eans they have concluded a legally b inding contract. Somebody causes the death ot som ebody else; legally, this means m urder.'4 In Kelsens theory, as in Searle's, social lacts are, in a scnse, natural lacts (and then legal science could be reduced to natural science), but, in another sense, they are not reducible to natural lacts. This is so because every social laet legal f act, from Kelsens perspective, for, unlike Searle, he was interested in explaining legal phenom ena only is constitu ted , not only by a mere natural fact ("b ru te" fact in Searles terminology), but by a further element too; its specilic social (or legal) "m eaning". For Kelsen as well, as for Searle, it is at bottom a nortn that ascribes to a natural laet such specilic social (or legal) "m eaning", diat constructs it as a social (or legal) laet. Here, however, the analogies between the two theories fall short, and the paths ot the tvvo authors diverge. From what 1 have said so far, both Kelsen and Searle could in fact be considered as constructivists, and, rnore specifically, "social" constructivists, accordingto the clas194 C O N F R O N T IN G T W O CONSTRUCTIV1STS sification oi different kinds of constructivism recently established by Vittorio Villa.5 Villa writes that this label *[---] explicitly recalls Finn Collins characterization [...] of the thesis according to which "social reality is somehow generated by the way we th in k or ta ik about it, by our consensus about its nature, by the way we exp la in it to each other, and by the concep ts we use to grasp it. Social facts are ihought to be a product of the very cognition , the vety intellectual processes through \vhich they are cognised, explained and classified, in so far as this cognition is a shared, collective one" (F Collin, Socia l R ea lity . London, Routledge 1997, pp. 2-3).' We can notice, hovvever, some differences betvveen Kelsen and Searle. In the next section I shall focus on three main differences, concern ing the scope of their theories, the distinct kinds of constructivism they endorse , and the contrasting answers they present to the so-called question of "institutional reality". II. Some differences between Kelsen and Searle A. T h e s c o p e o f t h e i r t h e o r i e s The first sharp difference relers to the aims and scope of Kelsen and Searles theories, respectively. As is well-known, Kelsens aim is to build up a pu re theory of law. Therefore, he carries out (at least) a triple "purification": a) To begin with, Kelsen wants to puri ly legal theory oi any ideological elements, that is from any value judgement , or any political, religious or moral evaluation: '[...] the Pure Theory has an outspoken anti-ideological tendency. The Pure Theory exhibits this tendency by presenting positive law free from any adm ixture with 195 P aolo C om anducci any "ideal" or "right" law. The Pure Theory desires to present the law as it is, not as it ought to be; it seeks to know the real and possible, not the "ideal", the "right" law. In this sense, the Pure Theory is a radical realistic theory of law, that is, a theory of legal positivismi.'6 b) Secondly, Kelsen wants to purify the methodology of legal theory of any influence of dilferent Sciences. Kelsen aims at avoiding any methodological syncretism that is, the combined use of tools proper to different disciplines especially in the field of social Sciences, where only the methods of inquiry could draw a line between disciplines having the same object. In particular , Kelsen wants to avoid methodological syncretism betv/een sociology and legal theory: the first one belongs to the causal Sciences (together with natural Sci- ences and history), while the second one belongs to normative Sciences (together with ethics, logic and grammar).7 The division between causal and norm a- tive Sciences hence the dillerence between sociology and legal theory reflects, in Kelsen's opinion, the fundamental antithesis betvveen Sein and So ilen , is and ought. c) Thirdly, and consequently, Kelsen also wants to purify the object of legal theory. Kelsen \vrites of his ovvn theory: 'li characterizes itself as a "pure" theory of law because it aims at cognition focused on the law alone, and because it aims to elimmate from this cogni- tion everything not belonging to the object oi cogni- tion, precisely specified as the law.'8 Thus, provided that '[...] the law the sole object of legal cognition is norm',9 Kelsen restrains the scope of his analysis to legal norms only: 'The obvious statement that the object of the science of law is the law includes the less obvious statement that the object of the science of law is legal n o rm s , but human behavior only to the extern that it is delermined by legal norms as condition or consequence, in other words, to the extern that h u - man behavior is the content of legal norms. Interhuman 1 9 6 C O N F R O N T IN G T W O CONSTRUCTIV1STS relations are objects of the science of law as legal relations only, that is, as relations constituted by legal norms. The science oi law endeavors to com prehend its object "legally", namely from the viewpoint of the law. To com - prehend something legally means to com prehend something as law, that is, as legal norm or as the content oi a legal norm as determined by a legal n o rm .'10 Jo h n Searles work, on the o ther hand, has a more ambitious aim and a b roader scope than Kelsens. Ile w a n ts to b u i ld up a 'philosophy of Society [...] centering essentially around questions of social ontology.'11 Like a great fresco, Searles vvork now includes a theory oi speech acts ,12 a theory of m in d 13 and a theory of social reality. The three theories purport, as a whole, to provide an answer to the puzzling existence, in our unique world, of phenom ena which do not seem reducible to the phenom ena described by natural Sciences. Accordingly every social fact constitutes the scope oi Searles theory: not only legal iacts as in Kelserks pure theory but also those labelled, for example, as political, economic , and moral ones. It seems, therefore, that the two theories differ too m uch to he compared. But, in my view, this is not the case, for at least three reasons. First, Searle, being concerned with ali social iacts, is consequently concerned with legal iacts, too. lt is true that we cannot compare Searle and Kelsens theories as such, having different aims and scope: b u t we can c o m - pare them in so far as both oifer an explanation of the legal dominion. Second, the explanation of the legal dom inion is not a matter of secondary import in Searle's work: not only because he ollen refers, as examples of social Iacts, to m any legal concepts and institu tions, but also, and chiefly, because he maintains that his analysis 'at bottom is about pow er', 14 about the power relations in S o - ciety. And there is no doubt that law has m uch to do 197 P a o lo C o m a n d u c c i with power relations, even if, of course, it does no t exhaust them. Third, because, from the point of view of a legal philosopher , it is m teresting to test the impact of Searles ph ilosophy of society in the legal lield, exactly comparing it with the most im portan t legal theory ot ou r century , namely, Kelsens theory. B. Social co n s tru c t iv ism a n d Scientific c o n s tru c t iv ism Both Kelsen and Searle seem to be constructivists. But w hat k ind of constructivists are they? To name bo th of them "social constructivists", as we have done above, is not an answer but the beginning of an answer. This label, in laet, is used for keeptng them apart: on the one hand , from radical constructivists, w ho th ink any k ind oi reality, natural reality inc luded , is observerd e p e n d e n t ;15 and , on the o th e r h and , trom radical empiricists, w ho th ink any kind of reality, social reality included (tl any), is observer-independent. Constructivism has to do with ones ontology and epistemology. The differences b e tw een Searle's and Kelsens constructivisms, in my view, lay more at the epistemological level than at the ontological one. Etymologically, ontology is the study oi what is. But, since classical philosophy, "what is" means, alternatively or cumulatively: a) what exists, which things do exist; b) how il is what there is, what is the nature of things that do exist. Ontology Studies, using o ld-fashioned terminology, the existence and/or the essence oi things, vvhether facts exist and/or how facts are, the "being" and /o r the "is". Weil, I guess Kelsen and Searle who, in my op in - ion, do not explicitly distinguish the two m eanings of 'ontology' share a similar ontology, in both meanings of the word. They share, in the sense of 'ontology' as the study oi 1 9 8 C O N F R O N T IN G T W O CONSTRUCT1VISTS the existence of things, a realistic ontology: there is a world outside, and it is one World. Searle, on this subject matler, is more explicit than Kelsen, but also the latter, 1 believe, could subscribe Searle s external realisrn, that is '[...] the view that there is a way that things are that is logically independent of ali hum an representations'.16 Both share, in the sense ot 'ontology' as the study ot the essence oi things, the idea that, am ong w hat exists, there are ontologically objective things and ontologically subjective things. The 'm ode of existence'1' of the lirst ones, their essence, is independent ot ou r representa- tions: ontologically objective things (simpltlying: nature) are described by natural Sciences. The 'm ode oi exist- ence' of the seconcl ones, their essence, is dependent on our representations: ontologically subjective things (simplifying : society) are described by social Sciences.18 I insist that both Kelsen and Searle are social constructivists since they affirm that social facts are "constructed " by men, and they are not completely reducible to natural facts. There is not time enough now to do it, but 1 think that Kelsens ontology could he translated, w ithout serious difficulties, in terms of Searles ontology. For example , we could affirm that, according to Kelsen, the law is a complex network oi brute facts to which we have imposed the status of "normative coercive order",19 that has the function oi guiding hum an behaviors. On the o ther hand, Searle's epistemology looks different from Kelsens, still inlluenced, in the second edi- tion oi keine R echtslchre, by neo-kantianism. Searle, 1 think, would not accept, for example, the kelsenian use oi a p n o r i categories as conditions of intelligibility oi legal lacts qua legal facts, as in the case of "basic n o rm ": 'Insofar as only the presupposition of the basic norm makes it possible to interpret the subjective m ean in g o f the constitution-creating act (and of the acts established according to the constitution) as their objective mean199 P a o l o C o m a n d u c c i ing, that is, as objectively valid legal norm s, the basic norm as represented by the science of law may be characterized as the transcendental-logical cond ition of this in terp reta tion , if it is perm issible to use by analogy a concept of K ants epistem ology.'20 Both Kelsen and Searle are nonreduction ists, since they do not believe that (the language of) natural sci- ence suffices for a descrip tion of the whofe reality. If they are dualists in epistem ology, however, their dualism is ra ther different. Kelsen distinguishes between causal and normative Sciences: on the one hand, the Sciences w hich are concerned with what is (by nature or by convention); on the o ther hand, the Sciences which are concerned with what o u g h t to be. O n the one hand, the Sciences which use as explanatory tool the principle of causality; on the o ther hand, the Sciences which use the principle of im p u ta t io n .21 Kelsen, therefore, puts together, from an epistemologica! poin t of view, natural Sciences and empirical social Sciences. And he carefully distinguishes both of them froni legal science. Kelsen, at least in his long neo-kantian phase, seems to be a constructivist also from the epistemological point of view: 'It is [...] true that, according Kants epistemology, the science of law as cognition of the law, like any cognition, has constitutive character it "creates" its ohjeet insofar as it com prehends the ohjeet as a meaningful whole. Just as the chaos of sensual perceptions becomes a cosmos, that is, "nature" as a unified system, through the cogni- tion of natural science, so the multitude oi general and individual legal norm s, created by the legal organs, be- comes a unitary system, a legal "o rder", th rough the science of law. But this "creation" has a purely episte- mological character. It is fundamentally different from the creation of objects by hum an labor or the creation of lavv by the legal authority .'22 This kelsenian constructiv ism lives together, in his 2 0 0 C O N F R O N T I N G T W O CONSTRUCT IVISTS mature works, with descriptive attitudes, and sometimes il enters into a State oi tension with them. The interpretaiion 1 am providing may look "strained", but 1 would say that, in Kelsens epistemology, there is the idea of "two levels of reality". The first level is that of legal materials that are not "constructed" by legal science: they are a product of social construction because they are dependent on hum an acts and are described by so- cial Sciences. The second level is that oi legal norms that are "constructed" by legal science qua its object of inquiry. In conclusion, Kelsen, in addition to being a social constructivist, is also an epistemological constructivist,23 and, particularly, a Scientific one: it is legal science, not people at large, that "constructs" legal reality, that is the legal order and legal norms. Searle s dualism, on the contrary, is the dualism between ali natural Sciences (the language of physics and chemistry) and the social Sciences, or, perhaps, the philosophy oi Society. In my opinion, we cannot label Searle as an epistemological constructivist. Unless we are using 'constructivist' in a very weak sense, to which would thus apply to ali scientists and philosophers, because they use, to describe reality, a language partially "constructed" or reconstructed by themselves. In this weak sense, Searle too would be an epistemological constructivist: (or example , "fact"24 and "action"25 seem to me, in his work, theory-dependent terms, the meaning oi which is con- structed inside the very theory he works out. C. Facts and norms Kelsen and Searle agree, Irom an essence-relative ontological point oi view, that in the World there are "things" different from, and not completely reducible to, physical entities. 2 0 1 P a o l o C o m a n d u c c i It we limit ou r inquiry to the legal tield for the reasons m entioned above these "things" are for Kelsen, basically, meanings;26 for Searle, basically, institutional facts. Hence there is a family resemblance between the two positions. This resemblance is concealed by the different epistemological approach of the two authors and by the different lexicon they use. Since it is impossible to deal with ontological questions without using language - language, in a sense, cannot be transcended radical linguistic differences usually make us to believe that there are radical differences in the two au tho rs' ontologies . But, as 1 said above, this is not the case. Nevertheless , ihere are some differences left in Kelsen and Searles nonreductionism s. 1 shall tiy to show briefly a few similarities and differences in their positions on the puzzling question of institutional reality. Let us consider the passage by Kelsen 1 quoted above: 'People assemble in a large room, niake speeches, some raise their hands, others do not this is the external happening. Its meaning is that a statute is being passed, the law is created'. VVe have certain h u m a n acts, certain physical entities, some "b ru te" lacts, on the one hand, and their objective legal m eaning (the enactm ent oi a statute), on the o ther hand. Those acts ot will in Kelsens words have the objective legal m eaning oi the enactm ent ot a statute because they conlorm with the content oi a valid norm. Narnely, the validity oi a norm its 'specific existence' in Kelsen's words attributes an objective legal meaning to the acts that conform to its content, and it constructs those acts as the enactm ent of a statute: 'That an assembly of people is a parliament, and that the result oi their activity is a statute (in o ther words, that these events have this 'm ean - ing'), says simply that the material lacts as a w hole correspond to certain provisions of the constitution. That is, the content of an actual event corresponds to the 2 0 2 C O N F R O N T IN G T W O CONSTRUCT1V1STS c o n te n t o f a g iven n o r m . '27 K tha t n o r m h a d no t existed o r if it h a d n o t been valid , w hat for Kelsen is equiva- len t the sam e acts w o u ld no t have h a d tha t objective legal m ean ing : they w o u ld on ly have had a subjective one. Sam e acts, two different m e a n in g s .28 Searle, faced w ith the sam e exam ple , w o u ld say that 'X ( those h u m a n acts) c o u n t as Y (en a c t in g a s ta tu te) in C ( the con tex t oi a p a r l iam e n ta ry legal sy s te m )'. This is a cons t i tn t ive rule tha t im poses the s ta tu s of enac t ing a s ta tu te to the acts ot th a t g ro u p of p e rso n s , w ith the as soc ia ted function , for exam ple , of g u id in g behaviors . T herefo re , given X, in the con tex t C, collective in ten - t iona lity the sha red beliel tha t Y is en a c t in g a s ta tu te c o n s t ru c ts the inst itu tional fact Y. Il collective in tent iona li ty does no t ob ta in , th e n X does n o t c o u n t as Y. The sam e acts co u ld ob ta in , b u t the in s t i tu t iona l laet Y w o u ld n o t exist. Same acts, tw o different facts. U p to n o w 1 have stressed som e sim ilarities betw een Kelsen a n d Searles Solutions. N o w 1 w o u ld focus on tw o m a in dLlferences. a) A cc o rd in g to Kelsen, the objective legal m e an in g of an act d e p e n d s on a (regulative) n o rm w h ich has a dii f eren t s t ru c tu re from the (consti tu t ive ) rule tha t , ac - co rd in g to Searle, im poses s ta tus an d fu n c t io n on a fact. The s t ru c tu re oi a n o rm , ac c o rd in g to Kelsen, is i l X, th e n Y o u g h t to b e '; the s t ru c tu re of a rule, ac c o rd in g to Searle, is 'X co u n ts as Y in C \ This s h a rp difference can be w e a k e n e d if we interpret (at least) the kelsen iän basic n o rm , f ro m a d y n am ic po in t of view, as a cons ti tu t ive rule, that cou ld have rough ly th is fo rm ulatk in : 'W h a t is d e te r m in e d by the su p r e m e original p o w er in a Society c o u n t s as the first co n s t i tu t io n in tha t Society'. Two dilferences, however, w o u ld no n e th e le ss persist. First, even if we in te rp re t the basic n o rm as a c o n s t i tu - tive ru le , ac co rd in g to Kelsen the re w o u ld be, in a legal system , o n ly one cons ti tu t ive rule tha t a t t r ib u te s objec203 P a o l o C o m a n d u c c i live legal meaning to hu m an acts; ali o ther norm s, that carry out the same function, are regulative. Whereas, according to Searle, ali the rules that construct institutional facts are constitutive (or they have, at least, a constitutive element). Second, for Kelsen the sole c o n - stitutive rule (the basic norm ) is a p resupposition of the legal science, a transcendental-logical condition of intelligibility oi the whole legal order; for Searle, on the contrary, ali constitutive rules that contribute to produce institutional reality seem to be socially constructed and /o r accepted. b) The above-m entioned collective acceptance oi the im posed status and lunction constitutes, I w ould suggest , the second main difference between Kelsen and Searle. According to Searle, the collective acceptance, 'within systems oi constitutive rules',2g is a necessary and sutficient condition lor the existence of institutional lacts .30 W hereas for Kelsen it seems to be neither a necessary nor a sufficient condition. But, in this case too, the differences are less sharp than they appear at a first sight. It is true that for Kelsen the existence of every objective legal m eaning only depends on the very existence oi a vai id legal norm , and, therefore, social acceptance, collective intentionality, social beliels, and so on, are totally irrelevant on this point. They can only determine the subjective meaning oi an act, no t the legal objective one. Kelsens epistemology prevents him from taking into systematic account the notion of "etlicacy" a notion that, lor him, properly belongs to causal Sciences and not to the normative ones: even if collective acceptance makes elfective a status and function imposition on some act, this acceptance is nevertheless not sullicient to ascribe an objective legal meaning to that ac t .31 But it is also true that in Kelsen's work we tind the 2 0 4 C ö N F R O N T IN G T W O CONSTRUCTIV1STS idea acco rd ing to w h ic h a necessary c o n d i t io n oi the ex is tence of a legal o rd e r in a soc ie ty is its overall efficacy , nam ely the ( in s t i tu t iona l) laet tha t such a legal o rd e r is socially cons idered , as a w ho le , the law of that society. This is a p re-analy tical c o n d i t io n of the exis t- ence of law that cons ti tu tes , as it is w e l l -k n o w n , a very p ro b lem atic po in t of Rcine Rcchtslehre. In conc lus ion , rough ly speak ing , the o p p o s i t io n betw ee n objective legal m e a n in g s an d in s t i tu tional faets, as b u i ld in g b locks of inst i tu t ional reality, is less sh a rp th a n it appears: on the one h a n d , Searle w o u ld regard ke lsen ian n o rm s a n d objective legal m e a n in g s oi acts as different sorts of inst itu tional faets; on the o the r hand , Kelsen vvould regard at least an im p o r ta n t part of Searles in s t i tu t iona l faets as n o rm s o r objective legal m e an in g s of acts. III. Some open questions N ow 1 vvould point ou t tw o o p en q u e s t io n s in Kelsen a n d Searles theories. These qu es t io n s have to do w ith a basie ontological tene t oi b o th a u th o rs : the neecl to p o s tu la te a specitic m o d e of ex is tence of in s t i tu t ional reality. A m ode ot existence tha t vvould m ake true som e s ta te m en ts vvhich do no t reler to physical entities. Let us start vvith Searle. In som e passages oi h is book , he ad m its tha t collective intentionality , vvhich creates and m a in ta ins inst itu tional faets, cou ld be based 011 false beliefs: '[...| in ex trem e cases they [the participants] may accept the im position oi (u n c t io n on ly because oi som e rela ted theory, vvhich m ay no t even be t rue . They may believe tha t it is m o n e y on ly if it is "b a c k e d by g o ld " or tha t is a m arriage only il it is sancti l ied by G o d or that so an d so is the k ing only because he is d iv inely auth o r iz ed [...]. As long as peop le c o n t in u e to recognize the X as hav ing the Y s ta tus function , the inst i tu t ional 205 P aolo C om anducci fact is created and maintained. They do not in addition have lo recognize that they are so recognizing, and they may hold ali sorts of o ther false beliefs about what they are doing an d w hy they are doing it .'32 Searles strategy, in my view, consists in keeping separate the belief whtch creates the institutional fact from the lalse belief whtch functions as justification of the first belief. There are cases, hovvever, in which the second belief collapses on the first one. In such a situation , I think, some difficulties arise for Searle's theory. Let us take the following example. Let us suppose that in antiquity the application of a constitutive rule according to which "Blindness counts as a divine sanct ion" had created the institutional fact nam ed "divine sanction". People collectively accept this rule, vehich imposes to blindness (a brute fact) the status of a d i- vine sanction, and then the lunction of pun ish ing blind persons, w ith associated normative consequences for thetn, such as to be considered blamevvorthy, to be marginalized, and so on. The normative background could be, for example, that constituted by the natural law doctrine in the antiquity. lf a divine sanction is an institutional laet, then it is true atemporally or plainly true, according to von Wright s defin ition33 a statement like "the blindness oi O ed ipus is a divine sanction", which corresponds to that institutional laet. This statement should not to be conlused with other true statements, according to which, for example, T h e ancient Greeks shared the beliet that "Blindness ot O edipus is a divine sanction"', T h e a n - cient Greeks accepted the constitutive rule "the Blindness counts as divine sanction"', and so on. We do not need assum ing the existence oi any institutional laet to affirm the t ru th of these last statements. But the very point of Searle is that institutional facts make true in the sense of tru th as correspondence the statements referring to them. 2 0 6 C O N F R O N T IN G T W O CONSTRUCTIV1STS On the other hand, in our example, the content of ancient Greeks' belief, which functions as justilication of the belief vvhich creates the institutional laet, is just that "Blindness is a divine sanction", that is to say it is exactly the same belief vvhich creates the institutional fact. In other words, the 'related theory' that justify the sta tus and function im position on b lindness is that "Blindness is a divine sanction". Weil, 1 suppose that Searle w ould agree, on the hasis of m o d e rn natural Sci- ences paradigms, that ancient Greeks' theory is false, that blindness is an illness and not a divine sanction, nanrely that the ancient G reeks' belief accord ing to vvhich "Blindness is a divine sanction" is a false belief. Then, 1 guess, Searle should conclude that a statement like "the blindness oi O edipus is a divine sanction" is false, atemporally lalse. The amazing conclusion is that the same statement ("the blindness of O edipus is a divine sanction") vvould be atemporally true, ascorresponding to an institutional fact, and atemporally lalse, according to the paradigms of natural Sciences, vvhich, for Searle, describe '[...] the most fundamental leatures'34 of our only vvorld. If this conclusion is sound, there is, 1 guess, a serious problem for Searle's theory.55 It seems to me that Kelsen (aces an analogous d i- lemma vvhen he deals vvith the subject matter of irregular norms. The problem is the follovving. From a dynamic point of vievv, in Kelsens S tu fenbau a norm is valid il and only il it vvas enacted by an authorised organ, that is an organ that vvas empovvered to enact that norm by a superior valid norm . The legal system is thus necessarily consistent, because every valid norm (except the basic one) conforms to a superior one. Dealing with the conflict betvveen no rm s of different levels, for example betvveen a statute and a judicial decision , as vvell as betvveen the constitu tion and a stat- ute, Kelsen vvrites: 'A "norm contrary to a n o rm " | . J is 207 P a o l o C o m a n d u c c i a sell-contradiction; a legal norm which might be said to be in conflict with the norm that determ ines its creation could not be regarded as a valid legal norm it would be null, which m eans it would not be a legal norm at ali.'30 Then, w hat about irregular norms? W hat about, for example, a statute enacted by an unauthor- ized organ, or \vhose m eaning-content contradicts the m eaning-content of a superior norm? lf and when that statute is annulled by a com peten t organ (for example a constitutional court), there is no problem. But it happens sometimes that such a statute is not annulled and remains in iorce. According to Kelsen, in this case the statute which is deem ed to be against the constitution maintains its validity tili it is repealed. Here again, as in Searle's case, we meet a statement, for example "The statute X is valid at time t in the legal system S" which is atemporally lalse, because the stat- ute conflicts w ith the constitution, and it is atemporally true, because the statute is not (yet) repealed by the constitutional court. Kelsen is avvare of the existence of this problem in- side h is own theory, and tries to overcome it by resorting to the so called "tacit alternative clause":37 the question is answered atfirming that the previous statement is atemporally true and not false. His solution is of course highly problematic, even if 1 tried, elsevvhere,38 to argue lor the consistency of Kelsen's idea with the whole structure oi pu re theory. Is there also any solution for the analogous problem that, in my opinion, affects Searles theory? IV An alternative? Alf Rosss approach A possible way ou t ,3g but obviously not acceptable for Searle, w ould be rejecting the m ode of existence of institutional facts and to reduce institutional facts to 2 0 8 C O N F R O N T IN G T W O CONSTRUCT1V1STS bru te facts. This solution, in the legal field, is presented by Scandinavian legal realism and by Alf Ross, who deny the need to postulate the existence oi institutional facts in order to formulate true statements referring to the same phenomena that, for Searle, are institutional facts.40 As it is well-known, Ross analyses legal terms such as ovvnership, right, territory, marriage, nationality, etc., as a 'technique of presentation [...1 which is highly important tf we are to achieve clarity and order in a complicated series oi legal rules.'41 In my opinion, something like that seems maintained also by Searle, w hen he says: T h e word "money" functions as a sum m ary term or as a place holder for being a m edium of exchange, a store of value, a payment for Services rendered, a measure of value of other currencies and so on.'42 But, Ross adds, these terms connect 'a cumulative plurality oi legal consequences [...1 to a disjunctive plurality ot conditioning lacts.'43 And these terms are completely hollow: M i they are words without meaning, without any semantic reference, and serve a purpose only as a technique oi presentation. Nevertheless, it is possible to taik with meaning about rights, bo th in the form of prescriptions and assertions.'4411 we adopt this perspective, institutional facts are not partially constructed by language : they simply do not exist. And believing in their existence would show, lollowing Ross: M l a considerable structural resemblance to primitive magic thought concerning the invocation oi supernatural powcrs which in turn are converted into factual effects. Nor can we deny the possibility that this resemblance is rooted in a tradition vvhich, bound u p with language and its power over thought, is an age-old legacy from the infancy of our civilization.'45 And that would be so, not only for people w ho share com m on beliels about such supposed institutional facts and socially accept thern, bu t also for scientists and philosophers who claim they are making true statements about them. 209 P a o lo C o m a n d u c c i Accordingly, the term s which, in Searle's op in ion , w ou ld refer to institutional facts w ou ld be b u t void words, w ithout any semantic reference. Hic Rhodus, hic saita. Notes and references 1 J.R. Searle (1996). The C o n stru c tio n of Social R ea lity . London, Penguin Books. 2 H. Kelsen (1978 [1960]). Pure T h eo ry o f L aw . Berkeley, Los Angeles and London, University of California Press. 3 lb id ., p. 2. 4 lbid . Cf., in the same sense, the lirst edition of Reine Rechtslehre: H Kelsen (1992 [1934]). In troduction to the P rob lem s o f Legal T h eo ry . Oxford, Clarendon Press, pp. 8-9. 5 Cf. V Villa (1999). C o stru ttiv ism o e teorie del d ir it to . Torino, Giappichelli, p. 45. 6 H. Kelsen, Pure T h eo ry o f L aw , quot., p. 106. 7 Kelsen presents, for the first tiine, these ideas in H a u p tp ro b lem c d e r S ta a tsre ch ts leh re en tw icke ll a us d er Lehre voin R e c h ts sa tz , Tubingen, Mohr, 1911, and in U ber G re n ze n zw is c h e n fu r is t- isch er u n d so zio log ischer M e th o d e , Tubingen, Mohr, 1911. 8 H Kelsen, In tro d u c tio n to the P roblem s o f Legal T h eo ry , quot., p. 7. 9 lb id ., p. 11. 10 H. Kelsen, Pure T h eo ry o f L aw , quot., p. 70. 11 J.R. Searle (1998). Social Ontology and the Philosophy of Society, pp. 143-58 in A n a ly se & K ritik , 20, at p. 143. 12 Cf J .R. Searle (1969). Speech A cts: A n Essay in the P h ilo sophy o f L anguage. Cambridge and New York, Cambridge Universi- ty Press; J.R. Searle (1979). E xpression a n d Meaning: S tu d ie s in the T h eo ry o f Speech A cts. Cambridge and New York, Cam- bridge University Press. 13 Ct J.R. Searle (1983). In ten tio n a lity : A n E ssay in the P hilosophy of M in d . New York, Cambridge University Press; J.R. Searle (1992). T he R ed iscovery oj the M ind . Cambridge, Mass. and London. M1T Press. 14 J. R. Searle, Social Ontology and the Philosophy of Society, quot., pp. 156-57: 'We are talking about how Society organises povver relations. Il normally does it through the institution oi 2 1 0 CdN FRO N TIN G TWO CONSTRUCT1V1STS status function. Som ebody is the boss and som ebody else an em ployee, som ebody is an elected president, som ebody is defeated and so on. And ali of this is designed precisely to intersect with other elem ents of the Society. So, in order to have m oney you have to have a system o f r igh ts and obligations. You have to have the ability to buy and to sell, to store value in the form of m oney as paym ent for Services rendered. So, that is the reason for the interlockingcomplexity. T hat's w hat we have the system for. It is designed and has developed to enable people to cope in com plex social groups, in pow er rclations.' f 5 Searle labels this position as "social construction ism ", and delines it as the view that teality is socially constructed , that vvhat we think of as "the real w orld" is ju s t a bunc h of things constructed by groups of people', J.R. Searle, T h e C o n s tr u c t io n o f S o c ia l R c a lity , quot., p. f83. f6 Ib id ., p. 155. 17 Cf. ib id ., p. 8. 18 Cf. ib id ., esp. pp. 190-91. 19 Cf. H. Kelsen, P ure T h e o r y o j L a w , quot., p. 44. 20 Ib id ., p. 202. 21 Cf. ib id ., pp. 75-91 . 22 Ib id ., p. 72. 23 But not a radical one: cf. V. Villa, C o s tr u t t iv i s m o e te o r ie d e l d ir i t to , quot. 24 Cf. J.R. Searle, T h e C o n s tr u c t io n o f S o c ia l R e a lity , quot., p. 211: 'On this account facts are not com plex objects, nor are they linguistic entittes; rather, they are c o n d it io n s , specifically, they are conditions in the World that satisfy the tru th conditions expressed by statem ents.' 25 Cf. J .R. Searle (1997). Responses to Critics of T h e C o n s tr u c tio n o f Soc ia l R ea lity . P h ilo so p h y a n d P h e n o m e n o lo g ic a l R esea rch , LVI1, 2, 1997, pp. 4 4 9 -5 8 , at pp 4 5 5 -5 6 , where he affirms that David-Hillel Ruben, m his criticism , 'm akes a mistaken and question begging identilication between physical m ovem ents and actions. Ruben sim ply assum es that "sam e physical m ovem ents" implies "same action", that an "action per se" is ju st a physical m ovem ent and that everything else is "relative to a description". But one thing vve can learn from my account is that this is false. In one case movements of a certain physical type constitute the action of scoring a touchdow n. In the other case m ovem ents of the same physical type do not. Same m ovem ents different actions. The laet that the actions are 2 1 1 P a o l o C o m a n d u c c i different wilI indeed generate different descriptions because there are different facts that the descriptions m ust descnbe. Diiferent true descriptions correspond to diiferent actions. F urtherm ore, it is not only false but question begging to identify action w ith bodily m ovem ent alone because the d istinction I am m aking is that betw een actions w hich are m ade possible by the existence of the rules and those wh:ch are not. The fact that those physical m ovem ents c o u n t a s the action of scoring a touchdovvn can only exist because of the rules of football.' 26 I am following here the standard English translation of the G erm an w ord Sinn, as it is usecl in these contexts by Kelsen. 'M eaning', namely, is not here the translation of the German word B c d c u tu i ig: Kelsen is not speaking oi a sem antic notion. 27 H. Kelsen, I n tr o d u c tio n to th e P ro b le m s o jL e g a l T h e o r y, quot., p. 10. 28 Cf. ib id ., pp. 9 -10: lt is necessary, then, to distinguish between the subjective and the objective m eaning of an act. The subjective m eaning may, but need not, coincide w ith the objective m eaning attributed to the act in the system oi ali legal acts, that is, the legal system. The act of the farmius C aptain from Köpenick was to have been its subjective m e a n in g -a n adm inistrative directive. Objectively, however, it was not an adm inistrative directive bu t a delict. W hen m em bers of a secret Society, in tending to rid their country oi undesirables, condem n to death som eone they regard as a traitor, they ihemselves consider their act, subjectively, to be a pronouncem ent of the death penalty. They call it that, and instruct their agent to kili the condem ned party. Objectively in the system of objective law the killing is m urder by secret tribunal, and not the carrying-out of a death penalty. And this is so even though the external circum stances oi the act cannot be distinguished from those of carrying out a death penalty.' 29 JR . Searle, T h e C o n s tr u c t io n o f S o c ia l R e a l i t y , quot., p. 28 30 Ib id ., p. 51: The point is that the Y term must assign soine new status that the entities nam ed by the X term do not already have. and this new status must be such that hum an agreement, acceptance, and other torm s of collective intentionality are necessary and sullicient to create it.' 7 1 lt is w orth to notice, however, that for Searle too not every single act or fact should be socially accepted in order to becom e an institutional fact. Cl. J.R. Searle, T h e C o n s tr u c tio n 2 1 2 C O N F R O N T IN G T W O CONSTRUCTIV1STS o f S o c ia l R e a l i ty , quot., p. 32: we need to distinguish hetw een institutions and general practices on the one hand and particular instances on the other, that is, we need to distinguish between types and tokens. A single dollar bill m ight (ali from the prin ting presses into the cracks of the floor and never be used or thought of as m oney at ali, but it w ould still be money in such a case a particular token instance w ould be money, even though no one ever thought it was m oney or thought about it or used it at ali.' 32 I b id . , pp. 47 -48 . The same passage is the very ohjeet of a deep and brilliant criticism by B. Celano ( f 999). Collective lntentionality, Sell-referentiality, and False Beliefs: Sorne lssues C oncerning Institutional Facts, A n a ly s e & K r i t ik , 21 , 2 . The conclusion of Celanos argum ent is that *[...] institutional facts being belief-dependent is not com patible with people having false beliefs about them'. I shall not dtscuss here his argument. 33 Cf. G.Hl. von Wright (1984). Truth, Knowledge, and Modality. P h ilo so p h ic a l P a p e rs v o lu m e III. Oxford, Blackwell, p. 5. 34 J. R. Searle, T h e C o n s tr u c tio n o f S o c ia l R c a l i tv , quot., p. XI. 35 An obv ious so lu tion co u ld be to reject the n a tu re of institutional laet attributed, in the exam ple, to the divine sanction: blindness, even if people believe it to be a sanction im posed by God, because of such a beliet being false, rem ains but a brute fact. In this case, however, 1 guess that Searles very defin ition of in s titu tiona l facts sh ou ld be partially modified. In the legal dom ain, at least according to legal realism, there is, in fact, plenty of cases in w hich people share false beliefs on the existence of supposed institutional facts (rights, duties, contracts, etc.): if blindness as a divine sanction is not deem ed by Searle to be an institutional fact, then neither legal rights, duties, contracts, etc., would be institutional facts, contrary to Searles explicit tenet. 36 H. Kelsen, Pure T h c o r y o f L a w , quot , p. 267. 37 Cf. ib id ., pp. 207-76 . 38 Cf. R Com anducci (1997). Takitig Kelsen Sertously, pp. 165- 82 in E. Garzon Valdes, W Krawietz, G. H. von Wright and R. Zim m erling (eds.), N o r m a t iv e S y s te m s in L ega l a n d Mora/ T h e o r y . Berlin, Duncker & Hum blot. 39 There are of course other Solutions: a very interesting one is offered by the conventionalist approach. Cf. at least: D. Le- wis (1969). C o n v e n tio n . C am bridge, Mass., H arvard Univer- sity Press; E. Lagerspetz (1995). T h e O p p o s ite M irro rs . A n E ssa y on th e C o n v e n tio n a lis t T h e o ry o f In s ti tu tio n s . D ordrecht, Kluwer. 213 P a o l o C o m a n d u c c i 40 For a sm art analysis of both Ross' and Searles Solutions to the question of institu tional reality, cf. D. Celano (1999). I n s t i tu t io n a l Facts: T h e R e a l i s t A p p r o a c h . M anuscript. 41 A. Ross (1957). Tu-Tu. H a r v a r d L a w R e v i e w , 70, 5, pp. 8 1 2 - 25, at p. 821. Cf. also A. Ross (1958). O n L a w a n d J u s t ic e . London, Stevens & Sons, pp. 170 11 and p a s s i m . 42 J. R. Searle, Social Ontology and the Philosophy oi Society, quot., p. 155. 43 A. Ross, Tu-Tu, quot., p. 820. 44 I b id ., pp. 82 1-22. 45 Ib id . , p. 818. 214 Ota Weinberger DEMOCRACY AND THEORY OF INSTITUTIONS I. Defining the notion of democracy The task of defining the notion of dem ocracy is con fronted w ith three logical and m ethodological problems : (i) The m ethodological problem s of real definitions in general. Il we have a class of objects w hich are interesting for research in a certain field we m ay try to specify the essential or defining features of ali objects of this class. The m ethodological peculiarity oi this task arises from the fact that the class oi objects w hose essential features are sought are noi given ostensibly, but the objects are determ ined as m em bers of the class by a set of com m on criteria defining the class-m em bership. Generally speaking , the search for essential features in order to arrive at a so-called real definition iscircu lar.1 Only a constructivist approach can be successful. In our case of defining the notion of dem ocracy we cannot start vvith a list of the main or ali dem ocratic States and look for their com - mon characteristics because the m em bership in the list m ust be justified by the criteria of subsum ing an object under the notion of dem ocracy From this consideration it follows that we cannot 215 O ta W e i n b e r g e r arrive at an appropriate definition of democracy by an empirical analysis oi a class oi actual States, bu t that we should introduce the notion of democracy through a suitable conceptual convention. (ii) A m odern Society and a m odern State are very complex entities. To characterise them as democratic, less democratic or undem ocratic is a qualification dependen t not only on one simple quality. It seems, on the contrary, that the democratic character of a ruling system or the degree of its democratic character - depends on a plurality of leatures. Figuratively speaking , we can say that the characteristic of being derr.ocratic is not only a feature oi different degrees but, so to speak, a multi-climensional feature. This m eans that the characterisation oi a ruling system as more or less demo- cratic is an evaluation of its character in different respects . Therelore it would not be justtfied to rank cifferent States as democratic in different degrees on one line ot intensity. (iii) The notion oi democracy and the characterisation of being democratic or undemocratic often plays the role oi a recommendation or ot a criticism, more than a purely descriptive characterisation oi the institutional reality oi the State. Democracy is olten used as the expression of a political ideal which is defined only approximately, and in more or less figurative terms. Social philosophy has the task ot specifying the essential leatures oi the ruling in society and in the State which could satisfy the ideal purposes oi the democratic rule. II. The basic ideas of democratic ruling The difficulties w ith the defin ition of the notion of democracy imply that it w ould be lutile to try to present an exact defin it ion of democracy. W hat we can do instead is to explain the main ideas and intentions that 2 1 6 D e M OCRACY A N D THEORY O F IN ST IT U T IO N S lie at the basis of d em o crac y as the w a tc h w o rd oi the political p ro g ra m m e called d em o cra t ic fo rm oi li le. L inco lns fam ous fo rm ula m ay in so m e w ay ske tch the d irec tion of these ideals: 'D e m o c ra cy is the govern- m e n t of the peop le , by the peop le , a n d for the p eo p le . ' N o b o d y really believes tha t L incolns fo rm u la consti- tu tes a defin ition of d em o c ra c y or an a p p ro p r ia te desc r ip t ion of the d em ocra tic State or tha t it defines g u id e Iines for the o rgan iza tion of d em o cra t ic life. The for- m u la expresses im plic i tly tha t in the d em o cra t ic concep t ion the State is no t the d o m in iu m of an y ru le r o r of any inst i tu t ion vvhether p rofane or sacred . But the essential qu es t io n h o w the collective will of the peop le is e s tab l ished rem ains u n answ ered . A s truc tu ra l analysis of the will fo rm a t io n of a co llec- tive sh o w s tha t this p rocess is always c o m p o s e d of two parts: (i) the p roposa l of an ac tion p ro g ra m m e ; a n d (ii) the assen t or rejection of the p roposa l by a collective vote. Additionally , rules m u s t be e s tab l ished def in ing the p ro c e d u re of v o t in g .2 The e lab o ra t io n of an ac t ion p ro g ra m m e is alvvays a p ro d u c t of the ideas of lead ing persona li t ie s a n d never the resull of a gen u in e ly collective process. O n ly interpersonal co n su l ta t io n s are k in d of t r an sp e rso n a l processes in g ene ra t ing political ac tion p ro g ra m m e s . But, in d e ed , even in these p rocesses elites genera lly take the essential role. VVe can see tha t the in te llec tua l lead ing function is no t collective in the s tric tes t sense , b u t only o p e n to a bit of collective in te rac t ion . In the practice of polit ical parties even of d e m o - cratic s o c ie t i e s the ideal of o p e n n e ss often is not m u c h s tronger th a n in churches . The c o n c e p t io n of the le ad - ing persona li t ies is not su b jec ted to critical cons idera - t ions (cf. the idea of party d isc ip line) . D em ocracy accep ts in p r inc ip le the n o t io n that p o - litical ac tion a n d dem o cra t ic ru l in g s h o u ld serve peop le s in terest, yet the dec is ion on w h a t is peop les ' inter21 7 O ta W einberg er est is a m atter oi s tandpoints and largely diverges between classes of the people and am ong political parties . The general framev/ork oi democratic ideas does not unambiguously determine w hat is democratic, but there remains a broad iield of open questions w hich can be decided in different ways. III. A formal or material characterisation of democracy? There is a s trong tendency in the theory of dem ocracy to characterise democracy by formal criteria or to State a single pu rpose tor dem ocra tic ruling, nam ely the maximisation ot freedom m Society.3 1 dou b t vvhether these tendencies are sound. The majority principle, the existence of dillerent concurrent parties, the periodicity of elections are examples of the formal characteristics oi democratic ruling. But our historical experience shows that the formal principles of dem ocracy can easily be transform ed or misused in such a way that very undemocratic structures may be introduced. Dictatorship, lor example, can be in troduced by majority vote, d iscrim ination against minorities can be the elfect ot a majority decision, etc. Therefore the conclusion, that purely formal criteria cannot guarantee democratic forms oi life, seenis justilied to me. li is tem pting to hold that the essential pu rpose of democracy is only the maximisation of freedom. Free- dom as the ideal oi liberal democracy is of course not unrestricted, but limited by the condition that the same treedom must be guaranteed to ali people.4 But the problems of freedom are in fact m uch deeper. Freedom as a political postulate is not one single idea, bu t a rather com plex cluster oi dilferent and often divergent claims, 2 1 8 D e MOCRACY AND THEORY OF INST1TUTIONS so that the postulate to maximise freedom w ith in the lim its of the same freedom for ali other people is not a clear nor even a consistent idea. The freedom of conscience, for example, is a nearly umversally accepted right in our cultural sphere. Yet the actual content oi religious norms may be in conllict w ith other postulates oi freedom. A person who decides to leave a religious community can be threatened w ith death penalty, the position of genders may be rather unequal, marriage with persons of another faith may be forbidden, etc. We see that elements of freedom can be in flagrant conllict w ith one another.5 Political aims designated as liberties have, of course, a strong suggestive power tor example, the liberties established in the European Union: liberty of residence, of goods traffic, of capital and of Services. But, in my opinion, we should carefully analyse the social and economic effects of these liberties and not take only an emotional standpoint on these liberties. Neither formal criteria alone nor a single universal ideal namely the ideal of maximising freedom can establish or safeguard the democratic form oi li te. Democracy is based both on certain formal principles and on a class of material principles essential for the demo- cratic style ot li le. The necessity oi this dual basis of democracy in formal and material principles is shown i n te r al ia by considering the role oi human rights in the democratic State. There is not a pre-established harmony between the ideals of human rights and the content of democratic majority decisions. If we conceive democratic decision making as a decision by majority vote, there is no guarantee that the decisions w ill be in accordance w ith hu- man right principles. Majority groups w ill perhaps accept discrim ination in their lavour or even processes of expulsion oi minorities in order to estahlish national (or ecclesiastical or other ideological) imperia (cf. the 219 O ta W einbhrger ideas of "Grofideutschland", "Large Serbia", "theocratic sociely", etc.). Even genocide may be a result oi a formally democratic majority vote. Therefore, we have to find a theoretically and practically acceptable solution for the possible conflicts between free democratic majority decisions and the protection of human rights. I shall try to lind an answer to this vexing problem from the standpoint oi the neo-institutionalist theory oi institutions combined with the ideas oi discursive democracy. IV Neo-institutionalism and democracy as an institution The democratic State is an institution with a specific character. It is the fundamental thesis of the neoinstitutionalist conception of institutions that every ins- titution is buiit on the basis of certain idees d ire c tr ice s , which is a ciass of practical information determining the vvork oi function to be achieved by the institution and the value standards to be applied in the instituti- on .0 We hold that democratic systems are characterised by two defining elements: Firstly, by rules of collective will formation mirroring the prevailing will oi the people and by rules of checking democratic ruling; and secondly, by an open class of leading ideas expressing the material principles of democracy. The explanatory principle of the democratic Society follows our general theory of institutions, and is of course not a mere a d hoc construction. I belteve that through this approach we can properly characterise the relation between the material principles of democracy, this means in te r a lia the binding nature of human rights, and the autonomy of democratic wtll iormation. 2 2 0 D e MOCRACY AND THEORY O F IN ST1TU TIO N S Democratic will formation is in principle autonomous to the etlect that by using due processes of will forma- tion which are established in the Society under consideration accepted valuations and consented political measures are valid. But the processes of democratic will formation are by no means arbitrary, but subjected to argumentation. There are different levels of argumentation and different social processes of justifying value standards, fixed purposes and decisions on how to act. In democratic societies there is a class of principles which are considered as essential to democratic life and which are therefore binding restrictions for possible democratic decisions. The situation leads to the following effect: The class ot democratic leading ideas is not closed and not fixed once and for ali. It is subject to social discourses, and therefore also subject to a kind of development. We can call the results of these dis- courses the humanisation of the principles and ideals of democracy. But, on the other hand, the actual conception of general democratic ideas is binding and there- fore means a postulated restriction on permissible will formation in democratic processes. At first sight it seems to he an insoluable conflict: (i) Democratic will formation is autonomous and the de- cisions obtained in due processes are valid. (ii) Demo- cratic decision, will formation in legal or political issues , is bound to he justified by actual democratic prin- ciples acknovvledged as idccs d irec tr ice s of the demo- cratic system. I believe that this conflict is in fact only apparent, but in reality a specific feature of democratic life in vvhich processes of discourses take place on different levels and are realised by different persons or parts of society. The discourses on democratic principles and human rights take place so to speak in theoretical and moral discourses; argumentation about specific political meas- ures or on legal decisions concern given problem situ2 2 1 O ta W e i n b e r g e r ations and m ust be justified both by considering ihe usefulness an d effectively of the choices a n d dec is ions as well as the postulates of democratic ideas w hich exclude some possible, b u t morally o r politically iinpermissible Solutions. V The idea of discursive democracy The system of multilevel discourses is typical for m odern democratic life and the source of a discoursive dynamism . This is, in my opinion, a usetul process with a tendency tow ards deve lop ing dem ocratic ideas and applying them in practice, but it does not provide an effective guarantee that democratic leading ideas will always be realised in political practice. The institutionalist view that 1 tried to expose demonstrates that democratic life is connected as well in theory as in practice with discourses. 1 recall president T.G. Masaryks saying that 'Democracy is d iscussion' w hich concerns this feature of m odern democracy. In contem porary political philosophy, there are two rather different conceptions oi discursive democracy, the conception o f ju rgen Haberm as and my less optimistie and more critical view. Haberm as and I share some opinions and tendencies . We are both convinced that democracy m ust be developed as an open Society in which political and ideological discourses have an essential influence on public affairs. We both plead for hum an rights and so- cial justice and for the active participation oi the people in controlIing political issues. But our philosophical backgrounds are quite different, a fact vvhich implies im portan t dilferences in our conception of discur- sive democracy. Haberm ass teaching is rooted in his discourse p h i- losophy, a methodological conception which 1 regard 2 2 2 D e MOCRACY AND THEORY O F IN STITU TIO N S as fundamentally misleading.7 Discourse philosophy is a philosophical doctrine elahorated by Habermas and Kari-Otto Apel. Its central theses are: 1. Rationality is conceived of as a collective process. Discursive rationality is put in opposition to the individual solipsistic thought in Apel s terminology8 and only those views are rational which are achieved by universal consensus in (ideal) interpersonal discourses. But I am convinced that argumentation is quite independent of the individual or collective process of arguing . The validity oi an argumentation is determined only by the logical relations and by the methods oi empirical testing, but not by collective processes and consensus. 2. Ideal discourses which are defined as free oi power relations (hcrrschaftsfrei), open to everybody concerned, and unlimited in time, are unrealisable. The essentiat point herrschaftsfrei is neither given in any society nor decisive to the result of the discourse.9 Therefore the notion oi ideal discourses is an inappropriate idealisation . Actual discourses should not be judged by the criterion oi similarity to this ideal, but subjected to criticism concerning the actual dangers oi mistakes and shortcomings. VVe need an appropriate organisation oi places ior open discussion and critical analyses of eristic features oi argumentations. 3. Habermas's notion ot the so-called 'consensus theory of truth is not well founded and leads our endeavour in a lalse direction.10 Truth, in the sense oi Habermass concept , is defined as the quality oi a thesis vvhich is accepted by universal consensus in an ideal discourse. There are at least the lollovving objections against the consen- sus theory of truth: (i) There is no valid transition from the subjective opinions oi the participants in discourses to objective validity (vvhich is supposed in the notion of truth). (ii) Truth is here delined as a limit of argumenta223 O ta W e in b e r g e r tive processes. The notion of such a limit is meaningful only if the steps of such discourses w ould necessarily approach just one thesis. But in laet there is no guarantee that the steps of discourses will come ahvays closer to just one limit. Therefore the introduction of such a limit-entity is logically not justified. 4. The collectivistic view on rationality and the aim to achieve a consensus leads research in a false direction . It is not the d iscussion of effective m ethods of enqu iry and argum enta t ion that are sought, bu t the m ethods of gaining assent. This is detrim ental to both the natural Sciences as well as political discourses. 5. Habermas defines good argum ents as those which evoke assent in a given aud ien ce11 and in do ine so heO (_> mixes up two different things: the real validity of argu- m ents and the convincing effect of an argumentation. There may be valid argum ents which do not convince the present audience, and invalid (deceptive) arguments may have convincing effects. To understand the essential difference between good (valid) argum ents and ef- fective argum ents in the sense of actually evoking convictions and assent is essential for the construction of a reasonable theory of argum enta tion .12 6. C oncerning practical questions consensus is not a proof that the accepted solution is in f act correct or the best one. Consensus is only a sign of a democratically accepted view and therefore an appropriate hasis for actual action, but not a proof that the decision is the best solution in an objective sense. 7. Discourse philosophy presupposes that there are some im m anent suppositions of every Communication, namely truthfulness and the readiness and du ty to defend every thesis that we com m unicate . But to teli som ething does not imply the duty to defend the thesis in discourses, and we often believe and com m unicate in fact theses that we are not vvilling or able to defend discursively. 224 D e MOCRACY AND THEORY O F IN ST1TU TIO N S It is a consequence of discourse-philosophical views that Habermas is optimistie and presupposes that discourses will lead to good Solutions of democratic ruling . He defines legitimacy and the acceptability of legal rules by the communicative procedure by which they are or could be established. 'AH persons w hich form the legal com m unity are entitled to test as participants of rational discourses vvhether the no rm u n d e r consideration will find or could find assent in the class of per- sons which could be concerned by it.' 'And on the posttraditional level of justification only such a law is legitimate that could be accepted by ali m em bers of the legal com m unity in a discoursive process of formation oi opinion and will.'13 In my opinion, Haberm ass conception of legitimacy is neither clear nor useful. Is legitimacy bound to as- sent in a real discourse or is it sufficient that we can presuppose that assent could be achieved? Every political system declares itself and its laws to be legitimate . 1 vvonder whether it is appropria te to restrict le- gitimacy to the existence or possibility of discursive assent, because often in political reality historical rights or actual facticity justify validity. It w ou ld be an illusion to declare ali laws which are not justified by dis- cursive assent to be illegitimate. 11 we take peace and peaceful evolution as the most im portant political ideal then we have to start from the actual political situation and we m ust acknovvledge existing legal relations as p r im a fa c ie legitimate. Such a view allows, of course, the struggle for a more democratic political system, but not simply by defining the actual political State as vvholly illegitimate. Habermas believes w ithout a convincing reason - that hum an rights wi 11 he established automatically by the democratic procedures of will fo rm ation .14 Yet a majority can be reached in decisions which essentially contradict some hum an right principles, such as a ma225 O ta W einberg er jority may vote for discriminating measures. Haberm as does not have a clear s tandpoin t against the doctrine of natural law. This becomes evident, for instance, in the following quotation: '[...] a legal order can be legitimate only if it does not contradict moral principles.'15 Such a thesis, w hich is reminiscent of a natural law position, is hardly compatible w ith Haberrnass subsequent theses, namely ihat moral principles have no hierarchical preference over law, and that autonom ous morality stands to positive law in the relation of a supplem ent.16 To be ubergeordnet or 'hierarchically stronger means just to have the capacity to exclude the validity of another norm: here the capacity of morality to exclude the validity of law. In my opinion, morality and law are com plem entary just insofar that they both motivate the behaviour of people in society, bu t not in the sense that morality is able to supplem ent missing legal rules. Haberm ass discourse philosophical consequences in his theory of democracy are not convincing to me. Some examples of his problematic theses are: (i) Practical questions can be judgecl impartially and decided rationally (ibicl., 140). As the solution of practical problems depends essentially on value s tandards and preferences (which, of course, can be divergent) there is not a unique and impartial rational solution of ali practical questions. (ii) Ali norm s of action (moral or legal norm s) are valid that can be agreed upon by ali persons potentially affected that participate in rational discourses ( ib id . , 138). The class of ali persons potentially affected by an enactm ent is controversial in principle (e.g., future generations may have a justified interest in our actual decisions regarding our econom ic activities, bu t they cannot be participants in our rational discourses). There is no good reason for the supposition that universal agree2 2 6 D e MOCRACY A N D THEORY O F IN ST1TU T10N S m ent will be reached on a proposed enactment. (iii) Every attempt l o arrive at an agreement on validity claims is a rational discourse if it takes place under the conditions of Communication vvithin a public realm established by illocutionary duties which makes possible free discussion about topics and contributions, information and reasons (ibid. 138 f.). Rational discourse cannot be detined by formal procedural rules alone; it depends on appropriate methods of argumentation and on effective m ethods of enquiry , an d in the realm of practical philosophy also on accepted value standards and preferences. (iv) In moral discourses, the rule of argumentation has the lorm oi the rule of universalisation (ibid., 140). The principle of universalisation is, of course, neither uniquely determ ined (it is not stated vvhich elem ents shall be subject to universalisation) nor is it sufficient by itself to underp in ali moral a rgum enta t ion .17 (v) Principles of democracy and of morality can be distinguished on the levels of external and internal considerations (1992, 142). In my opinion it is not very illuminating to back up the distinction between morality and law by the old idea that in morality only innervievvs are relevant, while in law only external views are applied. (vi) O n the basis of rational morality (Vernunftmoral) the individual tests the validity oi norm s u n d e r the pre- supposition that they will be in fact fulfilled by everybody (ibid., 148). Such a contrary-to-fact supposition it is also held by other authors is neither necessary nor useful. In arguing for rules and for the acceptance of moral p rin- ciples we should take a realistic position. It is a dangerous illusion to conceive of social dis- courses as processes in vvhich ali persons play the same role. A realistic sociological view on the social proc- esses of argumentation and of producing convictions is 227 O t a W e in b e r g e r not shaped by such a conception oi equality. Haberm ass supposition restricts his analysis in such a way that the most im portan t problems are not analysed ; in the first place the role of elites; and secondly, the multiplicity of dangers which can destroy the value oi democratic processes (e.g., deceptive propaganda, slogans or the use oi marketing-like m ethods in political practice). li I in terpret Habermas correctly he conceives legal processes such as a lawsuit as discursive processes. But in fact these argum entations are not orientated to fincl tru th or practical principles, but to arrange and to balance interests. Discourses, and discourses of a specific form, are only a part of legal procedures. VI. My conception of discursive dernocracy In my conception of discursive dernocracy, discourses are useful herm eneutic tools which give us the opportunity of melioration of public affairs, bu t they define neither tru th nor correctness nor value optimisation. Essential to democratic life is that discourses should take place on diflerent levels: as the preparation and critical checking ot public action, as the w ork of the mass media and last, but not least of the social Sci- ences. In my conception oi discursive dernocracy there is no place lor the romantic optim ism that holds that collective discourses automatically imply justice and prosperity and the freedom oi people. O n the contrary, 1 believe that dernocracy is always in danger, and there fore we m ust discuss political problems, fight lor the realisation oi the social p resuppositions ot an open S o - ciety and criticise deceptive argumentations. We actually live in an information society vvhere everybody has broad access to in form ation .18 But there is 2 2 8 D e MOCRACY a n d THEORY O F 1NST1TUT10NS also a n o th e r side of th e In fo rm a tion Society, n am e ly nearly u n l im ite d possibilities o f in d o c tr in a t io n a n d a d a n g e ro u s concen tra t ion of the m ass m ed ia in to few han d s . Tliis may becom e d a n g e ro u s for the realisa tion of an o p e n Society precisely in b o rd e r l in e s ituations. T here are im por tan t possibilities for the d ev e lo p m e n t of universal political c o n c e p t io n s a n d a universal moral cu l tu re . But dem ocracy also m ean s the right of differe n t ia t io n an d freedom in the sense of c h o o s in g a specific l i les ty le . ly In this respec t the re are m a n y o p e n q u e s t io n s in the E u ro p e a n political reality. Let m e co n c lu d e with the fo llow ing rem ark : The actual reality oi the E u ropean U n io n s h o u ld be ana lysed f rom the po in t of view of an in s t i tu t iona l a n d d iscur- sive c o n c e p t io n of d e m o c ra c y F rom th is analysis im - p o r ta n t reform ative ideas co u ld be derived . Notes 1 Cf. W einberger 1989, p. 364. 2 W einherger 1979. 3 Kelsen 1929. 4 Kant 1956. 5 W einberger 1978. 6 H auriou 1965. 7 Habermas 1981; Apel 1973; W einberger 1996. 8 The term "solipsistic" is here not appropriate. The thesis of solipsism concerns another problem , namely the epistem ic vievv that only my own experience is possible and that there is no way to obtain intersubjective know ledge. Cf. Weinberger 1992a, p. 258, fn. 8. 9 Dissidents vvere able ti) argue convincingly and to develop reasonable views in a society of strongideological oppression. 10 Cf H aberm as 1973; W einberger 1996; ibid 1992a, esp. pp. 257 and 260 s. 11 Haberm as 1973, where the au thor defines the quality of argum ents as the 'povver to reach consensus tn discourse'. 12 W einberger 1995. 229 O ta W einberg er 13 Hahermas 1992, p. 134 and 169. 14 There is a tension betvveen lacticity and validity, peoples souvereignty and hum an righis, but Habermas believes witbout strong argument that 'the normative content of human rights leave its mark on the realisation of peoples souvereignty' ( '[D]er normative Gehalt der Menschenrechte geht vielmehr in den Modus des Vollzugs der Völkssouveränttät selber ein.') F a k t iz i tä t u n d G e ltung , p. 131. 15 Habermas 1992, p. 137. 16 Habermas, loc. cit., p. 137. 17 Weinberger 1992b, esp. pp. 244-246. 18 Weinberger 1998. 19 Rescher 1993. Literature Apel, K.-O. (1973). T ran s fo rm a t io n en d e r Philosophie . Frankfurt a.M., Suhrkamp. Habermas,J. (1973). Wahrheitstheorien, in H. Fahrenbach (ed.), W irk l ich k e i t u nd Reflex ion . Pfullingen, Neske, pp. 218-265 . - (1981). Theorie des k o m m u n i k a t i v e n H ande ln s . 2 voi Frank- furt a.M., Suhrkamp. - (1992). Fakt iz i tä t u n d G e ltung , Beiträge z u r D iskurs theor ie des Rechts u n d des d em o kr a t is c h en Rechtsstaa tes . Frankfurt a M., Suhrkamp. H auriou, M. (1965). Die Theorie der Institution und der Grundung. Essay uber den sozialen Vitalismus, in R. Schur (ed.), Die Theorie d er Ins t i tu tion . Berlin, Duncker &r Humblot, pp. 27-66 . Kant, 1. (1956). Me taphy s ik d e r Sit ten. Ed. W. Weischedel, voi. Vili. Wiesbaden, lnsel. Kelsen, H (1929). Vom Wesen u n d XVerl d er D e m o k r a t i e . Repr. of the 2nd rcvised ed. Tubingen, Mohr. Rescher, N. (1993). Pluralism. A g a in s t the D e m a n d f o r C onsensus . Oxtord, Clarendon Press. Weinberger, O. (1978). Theorie der Gerechtigkeit und De-legeferenda -Argumentation. Ö Z Ö R29, pp. 197-210. - (1979). Abstimmungslogik und Demokratie, in B. Sutter (ed.), R e f o r m d e s R e c h t s . F S z u r 2 0 0 J a h r F e i e r d e r R e c h t s - wissenschaftlichen F a ku l tä t d e r Univers itä t G ra z . Graz, Leykam, pp. 605-623. 2 3 0 D e MÖCRACY AND THEORY OF INSTITUTIONS - (1989). R echtslogik. 2nd ed. Berlin, Duncker & Humblot. - (1992a). Conflicting Views on Practical Reason. R a tio J u r is 5 (3), pp. 252-268. - (1992b). M o ra l unc l V ernun ft. B eiträge z u E th ik , G erech tig ke its - th eorie u nc l N o rm en lo g ik , Wien, Köln and Weimar, Böhlau. - (1995). Zur Theorie der politischen Argumentation. Gleichzeitig ein Beitrag zu einem aktuellen Problem der Demokratie. R ec h ts th e o rie 27, pp. 163-182. - (1996). Basic Puzzles of Discourse Philosophy, R atio Ju ris 9 (2), pp. 172-181. - (1998). Information and Human Liberty. 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O N IH E N A T U R E »fS O C I A L and I N S T I T U T I O N AL R E A L I T Y WHAT IS THE NATURE of the social reality? How do the major social institutions like money or law exist? W hat are the limits of invidualistically-oriented social theories? These and rela ted problem s are in tensely discussed in philosophy in legal theory and in the m ethodology of social Sciences. This collection brings together the d ifferent traditions of the contem porary discussion. It includes new and thought-provoking articles by John Searle, Margaret Gilbert, Ota Weinberger, Raimo Tuomela, Eerik Lagerspetz, Michael Quante, M aha Cristina Redondo and Paolo Comanducci. ISBN 951 -39-0704-X COVER Teemu O llik iinen ,