Can There Be Institutions Without Constitutive Rules?

Abstract

Institutions depend on rules. But on what kind of rules? It has been argued that they depend on constitutive rules, this in contrast to ordinary social practices, which depend on regulative rules instead. The underlying idea is that constitutive rules differ categorically from regulative rules. Against this, I argue that regulative rules can be transformed into constitutive rules by doing little more than introducing a status term. The presence or absence of a status term does not make a difference to whether a social practice qualifies as an institution. In light of this, I propose that, pace Searle, there can be institutions without constitutive rules. Furthermore, even if it sounds somewhat paradoxical, regulative rules can constitute institutions. This implies that the distinction between social practices and institutions cannot be drawn in terms of these two kinds of rules. Following Tuomela, I propose to draw this distinction in terms of social norms instead: in contrast to ordinary social practices, institutions are governed by social norms. Hence, what is distinctive of institutions is that they feature deontic powers.

Appendix: Tuomela on the Transformation View

Tuomela presented part of his criticism of the Transformation View in an unpublished comment that was intended to be included as an appendix to his paper ‘Social Corporations as Social Institutions’ (Tuomela 2020). I thank his wife, Maj Tuomela, for her kind permission to present it here in full.

1.1 Constitutive Rules Are Not Reducible to Regulative Ones

Hindriks and Guala (2015), pp. 472–474, claim that constitutive rules are conservative (viz. non-creative) and a kind of eliminable transformations of regulative rules. But this contradicts at least my account because a constitutive rule in my account is an irreducible higher-order normative presupposition (a group-level ought-to-be rule, cf. Searle 2015). It says what the Y-term in the Searlean formula “X counts as Y in context C” is and also that X constitutes it. The constitutive rule is relatively stable in contrast to a regulative rule that primarily says how Y functions in an institutional context S.

The constitutive rule, C, in the Hindriks-Guala (H-G) paper (p. 472) says that if a person is the first to occupy a piece of land, it is his property, and that he hence has the right to use it. This can be seen as a general constitutive and defining feature of property. In these authors’ view the regulative rule (R) involved here is a conjunction saying in effect that if one is the first to occupy a piece of land then, in a quasi-Lockean sense, it is his property (corresponding to Y in Searlean constitutive norms); and if this is the case the resulting rule is claimed by the authors to entail that he has the right to use the piece of land (see Searle 2015, for criticism of this point). But R does not say how the institution of property can be used, so to speak, which is what a regulative rule should do at least according to my account. However, as will be shown below, in the H-G account C and R on the basis of their sameness of form have basically the same content. This implies that neither one is logically or conceptually primary, lacking a difference in the sense that I have claimed above concerning constitutive and regulative rules.

I will below state the H-G regulative rule R in the abbreviated form “If Occ, then Right” (p. 472). Fully formulated we have this: “If Occ, then Prop, and hence Right”. The rule C has the form “If Occ, then Prop and if Prop, then Right”. The two conjuncts jointly entail “If Occ, then Right”, i.e. the rule R. R and C thus are equivalent in relation to their consequences and in this sense have the same content in these authors’ account, given the assumptions made above. (What the authors regard as a theoretical term, viz. here ‘property’—corresponding to the “theoretical” term Y in the Searlean formula “If X then Y in C”—does not get eliminated by non-theoretical terms; see Guala and Hindriks (2015) and below for this.)

The central critical point against the H-G account as viewed from the point of view of my approach should be laid bare: the authors have in my view incorrectly mixed constitutive rules with regulative ones in their form-based treatment of the rules in question. However, at least in my account form need not distinguish them but rather their different functions. A constitutive rule should primarily say what something X is constituted as, while the regulative rule says how the constituted item or fact is supposed to be used or to function. Rules such as C and R qua, respectively, constitutive and regulative ones, are generally supposed to answer different questions and have different contents, which, however, the authors’ above simple logical formalism does not tell us but rather regards as equivalent. These authors’ rule C is indeed a constitutive one but their regulative rule R is also constitutive as to its form because having the right involves a right-involving status function entailing deontic power. Yet rule R does not show how to concretely use the institution of property as it should qua being a regulative rule. It can be concluded that the Hindriks-Guala proof does not succeed in eliminating constitutive rules in favor of regulative ones. What has above been said about the case of property applies mutatis mutandis to the institutions of money and marriage, etc.