From Searle's Constitutive Rules to the Law

Abstract

John R. Searle is the philosopher that introduces the distinction between constitutive rules and regulative rules for the first time1. He uses them to theorize about philosophy of language and about social ontology. In this paper, I will try to show the importance of the figure of constitutive rules to understand some aspects of the legal field. I will propose to focus in two key elements to understand how to apply Searle's theory to the law, and the advantages and disadvantages that this application has. I will also introduce some theories of philosophy of law related, and I will connect them with my proposal. The paper is organised as follows. In the first section, I will present the two theories where Searle presents and uses constitutive rules, and their main problems. In the second section, I will show the general problems of connecting Searle's theory with the legal field, and some theories that have tried to relate them. In the third section, I will defend that the assignment of a function and the collective acceptance are the two key elements of Searle's theory that solve most of his problems, and they allow us to understand how to apply his theory to the legal field. Finally, I will reflect about the importance that both elements have in the theories previously explored, and about the general advantages and disadvantages of applying Searle's theory to the law.