Abstract
Often the notion of a rule is connected to the guidance of behaviour. The expression ‘following a rule’ nicely illustrates this. The aim of this paper is to show that this connection between rules and normativity is much looser than is often assumed, and that—although there are rules which aim to guide behaviour—the notion of a rule and the notion of normativity are not necessarily connected.
This aim is pursued by two arguments. The first argument tries to show that rules that guide behaviour, regulative rules, are at the same time constitutive rules and that therefore the opposition of regulative and constitutive rules is a bogus one. To this purpose, it is first shown that there are more constitutive rules than counts as-rules only. Secondly it is argued that there can be ‘deontic facts’, facts that specify what should be done, and which can therefore guide behaviour. These facts can fulfil the role of guiding behaviour, and therefore rules are not essential to fulfil this function. Thirdly it is shown that two main kinds of ‘regulative’ rules are in fact both kinds of constitutive rules, and more in particular duty imposing fact to fact-rules or obligation-creating dynamic rules. The existence of these obligations and duties are deontic facts. Fourthly it is argued, very briefly, that other kinds of regulative rules are, for similar reasons, also constitutive rules and that therefore regulative rules are a subcategory of constitutive rules.
The second argument tries to give an account of rules as constitutive rules by presenting rules as constraints on which facts can go together, or—to state the same in more technical jargon—as constraints on possible worlds. To this purpose the argument takes from model-theoretic semantics the ideas of a possible world and of constraints that define which worlds count as possible. The technical aspects of model-theoretic semantics are mostly ignored, however, since they are irrelevant for the purposes of this paper. The paper gives a mostly informal indication of the logic of constitutive rules by positing them as ‘soft constraints’ in between the constraints that define sets of possible worlds and declarative sentences which are contingently true or false.
The argument in this paper elaborates some of the ideas that were mentioned in Hage (2013), and parts of this paper are adaptations of the texts of the Sects. 2.3 and 2.4 of that article. The argument in its present form has not only benefited from comments from the persons mentioned in the footnotes, but also from other participants in the Rules 2013 conference in Kraków, where an earlier version of the argument was presented, and in particular those of Michal Araszkiewicz, Andrzej Grabowski, and Marcin Matczak.
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Notes
- 1.
- 2.
Aquinas (S. Th.) I, II, qu. 90 Sect. 4; d’Entrèves (1970, p. 57).
- 3.
Kelsen (1960).
- 4.
Hart (2012, p. 94).
- 5.
- 6.
Foot (1978).
- 7.
Raz (1977).
- 8.
- 9.
Searle (1969, p. 33).
- 10.
Searle (1995, pp. 43–44).
- 11.
The exact opposite has been argued by Zelaniec (2013, p. 98), who states that constitutive rules cannot create anything unless they are followed. I became aware of this argument too late to discuss it extensively. My main objection would be that it is not the ‘being followed’ of constitutional rules that gives them their effect, but their existence. Moreover, it is not at all clear how, for instance, count as-rules can be followed.
- 12.
This ‘almost’ has to do with the defeasible nature of rule application. To avoid complications which have nothing to do with the purpose of this paper, I will ignore defeasibility in the rest of this paper.
- 13.
Searle (1995, pp. 43–45).
- 14.
Art. 3:84 of the Civil Code (Burgerlijk Wetboek).
- 15.
- 16.
See also footnote 12.
- 17.
It might be asked—and I owe this question to Tomasz Gizbert-Studnicki—whether the use of the term ‘constitutive rule’ would not better be reserved for counts as-rules only. This would avoid confusion, given the restricted use of the term in prior work, in particular Searle’s.
There is something to be said for that approach, but then we would still need a broader term that applies to counts as rules, fact to fact rules, and dynamic rules. Moreover, either one of the terms ‘counts as-rule’ or ‘constitutive rule’ would become superfluous, since the two categories to which the terms apply coincide. However, as we will see, the same objection applies to what I will propose, because then the category of constitutive rules will coincide with that of rules.
- 18.
The term ‘deontic’ is used, in particular in logic, for what should (not) be done, or be the case, and also for what is permitted. I would not mind giving up the term in favour of ‘normative fact’, if only this would not create confusion with norms in the sense of a kind of rules.
- 19.
Hage 1987. See also Hage (2015), for an English rendering of one of the main arguments of my PhD-thesis.
- 20.
Cf. for instance, the account of ‘internal reasons’ in Williams (1980).
- 21.
Geach (1956).
- 22.
Searle (1969, pp. 136–140).
- 23.
Searle (2010, p. 8).
- 24.
This was pointed out to me by Paul Boghossian.
- 25.
The present account of rules as constraints on possible worlds is relatively non-technical. A technically more elaborate account can be found in Hage (2005).
- 26.
E.g. Kripke (1963).
- 27.
- 28.
Some may contest this with respect to physical necessities.
- 29.
Forbes (1995).
- 30.
For instance, the sentence ‘Crows are black’ deals with crows in general, and not only with the crows that presently exist in the actual world. This sentence is true if all crows are black in all possible worlds that satisfy some constraint which makes that only black birds can be crows.
- 31.
By the way, this still leaves the question open how constraints exist. My guess is that this is in the end a matter of how the brain functions and the way in which minds (as realised by brains) interact with a not yet conceptualised reality. This topic will not be discussed any further in the present article, but in his book Rule-Following, Broźek (2013) discusses relevant literature and formulates interesting hypotheses.
- 32.
The present account of conditional sentences was inspired by Stalnaker (1968).
- 33.
This is not a very likely constraint. Much more plausible would be the general constraint that if somebody had thrown a brick at the window, the window would not be broken. Moreover, the counterfactual sentence strongly suggests that the window would not be broken either if nobody would have thrown a stone at it. This is not taken into account in the present analysis.
- 34.
The clause ‘at least three’ was used to show that a constraint can also have effects on possible worlds that are not described by a sentence with the same formulation as the constraint. It may be interesting to notice that the example only works if there is also a constraint that four is a bigger number than three. This also illustrates that necessities may be the result of the interaction of several constraints and not merely reformulations of constraints with the word ‘necessarily’ inserted.
- 35.
Arguably there are exceptions possible, but this only shows that constraints are amenable to exceptions. An intriguing hypothesis in this connection, which I only mention to stimulate research on it, would be that only constraints are amenable to exceptions. In Hage 2005, I treat rules as constraints on possible worlds and allow the possibility of exceptions to rules.
- 36.
The brackets should be interpreted as representing a function that maps sentences which can also be rule formulations on rules with those formulations.
- 37.
Technically, this might be accomplished by defining an accessibility relation over possible worlds such that precisely those worlds are accessible from a world w in which the same rules exist (are valid) that also exist in w. This would make the accessibility relation an equivalence relation.
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Hage, J. (2015). Separating Rules from Normativity. In: Araszkiewicz, M., Banaś, P., Gizbert-Studnicki, T., Płeszka, K. (eds) Problems of Normativity, Rules and Rule-Following. Law and Philosophy Library, vol 111. Springer, Cham. https://doi.org/10.1007/978-3-319-09375-8_2
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