The Varieties of Normativity: an Essay On Social Ontology

V. On Robust Normativity

In spite of the fact that Hart cares about legal institutions, that Rawls cares about political institutions, and that Searle cares about social institutions, they, and the legions who have followed in their footsteps, have all avoided addressing the challenge encapsulated in Raphael’s charge of triviality - the challenge that their respective logical analyses tell us “virtually nothing” about the normativity that is interwoven in the fabric of institutions of the various non-game-related types referred to in the foregoing. For aside from the sorts of normative demands to which secondary rules, practice rules, and constitutive rules give rise, there exist in law, politics and society other types of demands which are similarly non-conventional. Each of us believes that he has an obligation to respect other human beings; each of us believes that he has an obligation to apologize to those we might have wronged. These beliefs do not depend for their existence on any promises we have made, and neither do the associated obligations. Each of us believes, similarly, that intentional wrongdoing ought to be blamed more severely than unintentional wrongdoing; each of us believes that wrongdoers ought to be blamed. These views, again, are clearly normative, and they do not depend for their existence on any promises or contracts.

We believe (with Searle) that a minimum dose of realism is necessary for any sane philosophy.[^38] Moreover, (also with Searle) we understand realism as an ontological thesis: “realism … is not a theory of truth, it is not a theory of knowledge, and it is not a theory of language”, and Searle himself has recently admitted, that “if one insists on a pigeonhole, one could say that realism is an ontological theory: it says that there exists a reality totally independent of our representations”.[^39] Yet Searle avoids the discussion of realism as pertains to the dimension of moral normativity. Indeed at crucial junctures Searle shuns ontology entirely. Thus, in the introduction toIntentionality , Searle praises the methodological advantages of approaching the analysis of mental phenomena from the perspective of intentionality in the following terms: “one advantage to this approach, by no means a minor one, is that it enables us to distinguish clearly between the logical properties of Intentional states and their ontological status; indeed, on this account, the question concerning the logical nature of Intentionality is not an ontological problem at all.”[^40] Searle believes that a logical approach to intentional phenomena can allow him to repeat the success of his logical analyses of obligation in “How to Derive ‘Ought’ From ‘Is’”. InRationality in Action , still more recently, Searle has suggested that we can enjoy some of these same benefits by providing a logical account of notions such as self, freedom, and responsibility; that is, that we can talk about these notions without having to deal with the embarrassing ontological questions that had affected their treatment in earlier times.

In tandem with the shunning of realism as it pertains to ethics, of course, goes the shunning of precisely those types of normativity which are not soft. We can morally criticize Nazi institutions; we can accept that promises do not obligate if what is promised is itself immoral, we can expect - and some times accept - apologies when we are wronged. But to tackle theoretically these genuinely moral dimensions of social institutions we need to go beyond merely tracing thelogical paths connecting speech acts, institutions and consequent obligations.

To see what more is needed , let us pay closer attention to the normativity that is associated with our intentional states. This is, we suggest, more fundamental than the normativity associated with speech acts. Paradoxically, perhaps, we find some support for this thesis in Searle’s own philosophy, above all at the outset ofIntentionality , where he writes:

A basic assumption behind my approach to problems of language is that the philosophy of language is a branch of the philosophy of mind. The capacity of speech acts to represent objects and states of affairs in the world is an extension of the more biologically fundamental capacities of the mind (or brain) to relate the organism to the world by way of such mental states as belief and desire, and especially through action and perception.[^41]

We fully agree with Searle’s assumption regarding the priority, biological and otherwise, of intentional states over speech acts, though we wish he had done more to exploit this insight in his recent work on social reality. We say this not because we deny the general value of speech act theory. Our claim is, precisely, that its value should not be over-estimated, and that in particular the concern with practice, secondary or constitutive rules which we find in Hart, Rawls, and Searle has already yielded all the fruits that it is worth collecting. Constitutive rules do give rise to claims which exhibit some sort of normative force, but they are not nearly the end of the story of normativity.

A no less vital chapter in this story deals with a different sort of normative force - that which derives from intentional states. What happens if we focus not on speech acts in giving an account of legal and socio-political institutions, but rather on the intentional states which underlie them? Speech acts are in their entirety contingent, first in the sense that one can choose to perform them or not, and secondly in the sense that they need not have existed at all. It is indeed hard to imagine a society in which something resembling promising did not exist, but given Searle’s analysis of speech acts as products of constitutive rules such a society is not impossible. Some intentional states are not contingent in either of these two senses.

By Searle’s own admission, the intentional state of intending is crucially important for promising: if you promise to X then you must intend to X. But where the skeptic can raise the concern as to why he should play the “promising game”, there is no parallel concern in relation to the phenomenon of intending. This is because what happens when one intends is not the result of applying human conventions. And while it is hard to imagine a society which did not develop a practice more or less identical to promising as we know it, it is downright impossible to think of human beings who do not intend.