<i>Foundations of Institutional Reality</i>

Much of our social environment is “socially constructed.” Our lives are structured by institutions, rules, and norms. We participate in and interact with organizations and corporate entities, from firms and banks to schools, universities, and churches. Our economic activities rely on private property, money, contracts, and other financial and institutional constructs. And society couldn’t function without decision-making procedures and a legal system. Andrei Marmor presents an account of the ontological foundations of this “institutional reality.” He aims to account for institutional facts in a way that is compatible with methodological individualism: the view that social phenomena should be explained by reference to facts about individuals and their interactions. His book builds on two precursors: H. L. A. Hart’s The Concept of Law and John Searle’s The Construction of Social Reality. Marmor goes beyond Hart by (among other things) investigating social reality in general and not just the law, and beyond Searle by giving his own account of the ontology of rules and by challenging Searle’s distinction between constitutive and regulative rules.Marmor begins with some definitions. He defines “social facts” as those facts that depend ontologically on the existence of human interactions, and “institutional facts” as those social facts that depend on the existence of rules or simply as “facts about social practices” (10). He takes a “social practice” to exist “when we have certain types of human activities ... structured by rules or conventions, occurring with a certain regularity over time” (6). Some practices, such as the law, are “hierarchical”: they come with what Hart calls “secondary rules,” which determine “ways of creating new rules, modifying existing ones, [and] monitoring compliance” (7). Other practices are “flat”: they lack secondary rules. Marmor cites natural language, etiquette, customs, and conventions as examples. Among rules, Marmor further distinguishes between “natural” and “socially constructed” ones. The former, which he takes to include rules of logic and rationality, and rules of thumb such “how to get from A to B,” can somehow be “discovered” from “the way things are” (8); the latter are social constructs. Marmor’s interest is in socially constructed rules. Such rules may be deliberately “enacted” by someone with authority, or they may be “more foundational,” in “not resulting from anyone’s deliberate enactment” (9).Marmor agrees with Hart that, to account for institutional reality, we must explain what rules are, but he finds Hart’s own account insufficient. He takes Hart to hold that some rule—call it R—exists in some population—call it S—if and only if the following conditions hold:1. Most members of S regularly conform in their behavior to the content of R, and2. Most members of S accept R as a rule, which means that a. for most members of S the existence of R constitutes a reason for action in accordance with R, andb. members of S tend to employ R and refer to it as grounds for exerting pressure on other members to conform to R, and as grounds for criticizing deviations from conformity to R. (11)Marmor’s first worry is that those conditions for the existence of a rule are circular. One of them (2a) already refers to and apparently presupposes that existence. However, a tweaked formulation might avoid that problem. If we replace the reference to the existence of R in subclause 2a with a reference to a belief in that existence (as in “most members of S believe that the existence of R constitutes a reason for action in accordance with R”), the circularity goes away. Saying that people have that belief doesn’t presuppose that the belief is true. But Marmor has a second worry. He invites us to replace “rule R” with “God’s will” in the two conditions. The conditions then spell out what it means for the members of some population to be guided by what they believe to be God’s will. But people could be guided by this belief without God’s will existing. As a matter of logic, conditions that say that people are guided by their beliefs about something seem insufficient for the existence of that thing.To improve on Hart’s account of rules, Marmor invokes the idea of metaphysical grounding. Marmor suggests, plausibly, that social rules must ontologically depend on facts about individuals, and he thinks this dependence must be spelled out in terms of grounding rather than supervenience. Grounding is an explanatory relation between facts, where one fact (or set of facts) “grounds” another if the former metaphysically explains the latter. By contrast, supervenience is a modal relation, where one fact (or set of facts) “supervenes” upon another if a difference in the former is impossible without a difference in the latter. Because Marmor is a methodological individualist, he wishes to give a reductive account of social rules, and since supervenience relations can be nonreductive, he thinks only grounding relations can do the job. Marmor proposes that social rules are grounded in facts about shared intentions and replaces Hart’s conditions for the existence of a rule R in population S with the following:1. Most members of S regularly conform in their behavior to R’s prescriptive content.2. Most members of S commonly know that R’s content is collectively intended in S and regard this fact as giving them a reason to conform and reason to exert pressure on others in S to conform as well [as] criticize them when they don’t. (53; Marmor uses Si, which I have shortened to S)Given his methodological individualism, Marmor defines “collective intention” individualistically, inspired by some work on collective intentionality—namely, the individual members of population S “intend their attitude to be a group attitude,” they “have a sense ... of the group’s identity or composition,” and “there is common awareness between members of the group that others have the same or very similar We-intention” (47). (Here, Marmor’s account seems compatible with taking a “we-intention” to be an individual intention that is held in a distinctive we-oriented mode, as suggested by Searle, but also with taking it to be an ordinary intention with a we-oriented content, as suggested by Bratman.)Marmor recognizes that the reference to “most members” generates some vagueness in the conditions for the existence of a rule in a population, but he insists that what is vague is not the rule’s existence but only its classification as social for the given population. He says, “There is no need to determine whether ... a 15 percent level of conformity with R is enough for R to be a social rule. It is a social rule for those 15 percent who regularly conform to R; they are the relevant population whose social rule it is” (55). Somewhat counterintuitively, the existence of a rule for a population is then tied to compliance with it. A critic might wonder whether there couldn’t be rules that, by agreed legal standards, are binding for a population (such as traffic or tax rules) even though only half of the population complies with them. Would we wish to say that those rules aren’t rules for the noncompliant half?One of Marmor’s central claims is that “the prescriptive content of [a] rule just is the collective intention shared by members of S” (53). This claim underpins Marmor’s key epistemological conclusion that collectives have privileged epistemic access to the rules they follow. He writes, “If the content of a social rule just is the collective intention, then the collective in question cannot be mistaken about the content of the rule” (59). But the claim is slightly perplexing because the prescriptive content of a rule is presumably a proposition or an ought-statement (e.g., “X is obligatory/permitted in context Y”), whereas the collective intention is an attitude or a set of attitudes. I think Marmor should be understood as claiming that the prescriptive content of a rule is the content of the relevant collective intention.With this account of rules in place, Marmor revisits the construction of institutional facts. He agrees with Searle that institutional facts are “constituted by social rules” but disagrees with some aspects of Searle’s analysis. Searle famously distinguishes between “regulative rules,” which regulate independently existing forms of behavior, such as the rules of traffic, and “constitutive rules,” which bring into existence new forms of behavior, such as the rules of chess, without which there would be no chess. Furthermore, Searle thinks that constitutive rules paradigmatically have the form “X counts as Y in context C.” Such-and-such a move counts as a goal in football. Such-and-such event counts as the election of a president in the United States. Marmor responds that some rules can function in both constitutive and regulative ways, and when rules constitute practices, this is due to the functional role they play, not due to their “form or logic or structure” (77). Social practices, such as tennis or football, are typically constituted by a system of rules, and “by breaking one of the rules of a game you do not necessarily cease to be playing it” (81). For Marmor, rules constitute practices in a holistic manner: a cluster of rules constitutes the practice; those rules jointly suffice for the activity, but few of them, if any, are individually necessary. Furthermore, to play such a constitutive role, rules need not have the form “X counts as Y in context C.” Constitutive rules, like regulative ones, often prescribe or prohibit behaviors, and their content may be best expressed by “ought” or “ought not” statements, which need not fall under Searle’s formula.Marmor also discusses some related issues, such as: similarities between artifacts and institutions; differences between metaphysical explanations of social practices, which need not rationalize those practices for the participants, and hermeneutical explanations, which adopt the participants’ perspective; and the nature of power-structuring rules. He argues that complex societies must be able to make binding decisions, and this requires “power-structuring rules,” which give rise to hierarchical practices.This conclusion prompts a critical remark about Marmor’s reductionistic thesis that the prescriptive content of any social rule is simply (the content of) a relevant shared intention in the population. This thesis seems more plausible in the case of some basic and familiar rules of living together than in the case of more complex or derivative rules in a society’s institutional edifice. If we take any technical or specialized legal rule, it is doubtful that there is a widely shared collective intention in the population encapsulating its prescriptive content. But we wouldn’t conclude that such a rule is a rule just for the small percentage of specialists who are aware of it. Some rules may be implied by others, where those implications can be drawn out only through painstaking legal reasoning. It is possible—even likely—that, by its own standards, a society is committed to certain highly derivative rules that, because of informational or inferential limitations, only few individuals are aware of. Searle notes that the construction of social reality can be “recursive.” In Making the Social World, he writes, “The enormous diversity and complexity of human civilization is explained by the fact that [the] operation [of social construction] is not restricted in subject matter and can be applied over and over in a recursive fashion, is often applied to the outcomes of earlier applications and with various and interlocking subject matters, to create all of the complex structures of actual human societies” (Searle 2010: 201). Marmor undoubtedly knows this, but his account of social rules seems to underemphasize this recursive aspect. Furthermore, a complex system of rules could be jointly inconsistent in some nonobvious way, even if (hypothetically) the rules individually commanded strong supermajoritarian support in a population. As shown by impossibility results in the theory of judgment aggregation, R1,…,Rk could each have overwhelming individual support, and yet their conjunction could conflict with some other Rk+1 that is unanimously accepted. There might then be some indeterminacy as to which coherent subset among those rules society should be taken to be committed to. Lawyers often debate endlessly about what the laws truly say. These observations lead me to be somewhat skeptical not just about the prospects of a reductive account of institutional reality but also about Marmor’s optimistic epistemological conclusions.Despite these quibbles, I think the book is a valuable contribution, and scholars of social ontology, collective intentionality, and the law will find much in it that is thought-provoking and well worth engaging with.