Constitutive Rules: The Symbolization Account

• Published date: 01 September 2021
• Author: Marco Brigaglia,Bruno Celano
• Date: 01 September 2021
• DOI: http://doi.org/10.1111/raju.12327

© (2021) John Wiley & Sons Ltd.

Ratio Juris. Vol. 34 No. 3 September (244–262)

Constitutive Rules:

The Symbolization Account

MARCO BRIGAGLIA and BRUNO CELANO*

Abstract. Our aim is to provide an account of constitutive rules in terms of (1) the acceptance

of regulative norms, and (2) a cognitive process we call “symbolization” (in an altogether dif-

ferent sense from what J. R. Searle means by this word). We claim, first, that institutional facts à

la Searle boil down to facts concerning the collective acceptance of regulative norms in a given

community. This, however, does not exhaust what institutional facts are. There is a residue,

symbolization. Symbolization, as we understand it, involves a transfer of cognitive models from

one domain to another. We introduce this notion by exploring different sorts of games, taking

our cue from games of pretend play. In the context of this exploration, we introduce the idea

of the significance— a matter of degree— of symbolization for a given institutional concept. In

particular, we claim, symbolization may play, vis- à- vis a given institutional concept, a properly

constitutive or a merely auxiliary role. We further argue that, in most legal concepts as con-

ceived in our legal culture, symbolization plays a merely auxiliary role. A possible exception is

the concept of political representation, at least on some understandings of it.

1. Introduction

Our aim in this paper is to provide an analysis of constitutive rules. We mean the

term “analysis” in a literal sense: We will try to isolate the elements that constitutive

rules are made of. These elements, we shall claim, are (1) the acceptance of regula-

tive norms, regulating noninstitutional behaviour, and (2) a cognitive process we call

“symbolization” (we mean by this, as we shall see, something deeply different from

what Searle himself means by the same word). Symbolization, as we understand it,

involves a transfer of cognitive models from one domain to another. Symbolization

vis- à- vis a given institutional concept, we shall also claim, may be more or less sig-

nificant in different historical contexts or for different agents— at the limit, it can be

constitutive of the very concept at issue.

We proceed as follows. First, we claim that institutional facts à la Searle boil down

to facts of a straightforwardly mundane, ordinary sort, namely, facts concerning the

*We wish to thank two anonymous reviewers, as well as the Ratio Juris staff, for helpful com-

ments and criticisms. Our research was conducted within the framework of the project titled

“Legal Reasoning and Cognitive Science,” cofunded by the Erasmus+ Programme of the

European Union under the project number 2020- 1- IT02- KA203- 079834. The European

Commission’s support for the production of this publication does not constitute an endorse-

ment of the contents, which only reflect the views of its authors, and the Commission cannot be

held responsible for any use which may be made of the information contained herein.

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Ratio Juris, Vol. 34, No. 3 © (2021) John Wiley & Sons Ltd.

Constitutive Rules: The Symbolization Account

collective acceptance of regulative norms in a given community (Section2). Second, the

latter, however, does not exhaust what institutional facts, as fixed by constitutive rules,

are. There is a residue: symbolization (Section3). We introduce and illustrate the notion

of symbolization by exploring different sorts of games, taking our cue from games of

pretend play (Section4). It is in the context of this exploration that we introduce the

idea of the significance— a matter of degree— of symbolization for a given institutional

concept. In particular, we claim, symbolization may play, vis- à- vis a given institutional

concept, a properly constitutive or a merely auxiliary role (Section5). On the basis of this

distinction, we argue that, in most legal concepts as conceived in our legal culture, sym-

bolization plays a merely auxiliary role (Section6). A possible exception is the concept

of political representation, at least on some understandings of it (Section7). In the last

section (Section8), we summarize the conclusion of our analysis.

2. From Institutional Reality to Norms

Our reconstruction of the point and import of Searlean constitutive rules is premised

on an assumption. This assumption is the upshot of a critical assessment of Searle’s

theory of institutional reality deployed in Celano 1997. We shall now state this as-

sumption, and comment briefly on it. For a full- fledged argument supporting this

reading of Searle’s theory, the reader is referred to the said article.

Our assumption runs as follows. Institutional facts à la Searle boil down to facts

concerning the collective acceptance, in a given social group, of norms, facts which may,

or may not, also have a conventional dimension. In this paper, we shall leave this con-

ventional dimension, or conventional facts generally, aside. Our focus will be on the

normative dimension of institutional facts, that is, the collective acceptance of norms.1

By a norm we mean the ascription of a deontic property— obligatory, forbidden, or

permissible (the basic deontic modalities)— to a given action.2 A norm is collectively

accepted in a group G, trivially, if, and only if, the members of G, generally, take the

relevant pattern of behaviour as a standard for their own conduct and for the assess-

ment of the conduct of the other members of G. The action qualified as obligatory,

1 The fact that p is a conventional fact (as we understand this term) in a group G if, and only if,

the members of G, generally, behave in a certain way under certain conditions because they

expect the others to behave in that way, and they expect the others to behave in that way be-

cause the others behave in that way. In fact, a clear- cut distinction obtains between, on the one

hand, facts that are purely conventional (e.g., the fact that a given pub is trendy: Everybody goes

there because they expect others to go there as well, for this very same reason), and, on the other

hand, facts concerning the collective acceptance of norms. The two kinds of facts, however,

overlap. The collective acceptance of norms may itself have a conventional dimension (every-

body complies with the norm because others comply with it as well, for this very same reason).

Searle’s account of “institutional facts” lumps together the normative and the conventional di-

mension (see Celano 1997). We shall not, in this paper, dwell on these complications.

2 We use the term “deontic” in a broad sense, including the ascription to something of the property

“correct” or “incorrect” (apart from imposing obligations or prohibitions stricto sensu). We use it,

then, as a synonym for “normative.” It is not clear to us what Searle himself means by “normative”

and “deontic.” At times he distinguishes sharply between the two— he does not, however, explain

how the former term should be understood (Searle 2015). At other times, on the other hand, he as-

cribes to the domain of the “deontic” norms and rules which do not qualify as obligations or prohi-

bitions stricto sensu (Searle 1995, 109: “everything turns out to be deontic”; Searle 2005, § 4). Moreover,

he claims that, since everything, in institutional reality, “turns out to be deontic,” “the term ‘deontic’

is no longer appropriate” (Searle 1995, 110). We simply do not understand what he means by this.