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Lornd Ambrus-Lakatos
(This Draft: June 2002)
John Searle writes that constitutive rules are those that, in addition
to regulating forms of activities, also constitute these activities, that
is the existence of these activities is logically dependent on the
existence of the rules.1 Let us call the view according to which moral
practice is constituted by moral rules the thesis of constitutive moral
rules, or in short, the Constitutive Rules thesis. This thesis has
always been supported by the claim that there is a close and
significant analogy between moral rules and rules of games, as game
playing is surely governed by constitutive rules. There have been
numerous attempts to vindicate and employ this thesis, together with
the analogy, but two prominent statements stand out.
In his Two Concepts of Rules, John Rawls asserted that rules
manifesting utilitarian considerations ought to be conceived as rules
of institutions rather than as rules generated by successive attempts
of individuals to apply, directly, the dictates of utilitarianism. In turn,
activities within these institutions or practices are constituted by
rules. So once these rules are in place, one has to relate to them as a
basketball player has to relate to the rules of his game; and just as
one cannot checkmate his counterpart outside of the confines of
chess, one cannot carry out ones obligations outside of the confines
of some background practice.2
The thesis, together with the analogy, has also been invoked in a
well-known criticism of the once ruling fact-value distinction in metaethics. John Searle argues that the proposition that says, for
example, that Jones promised to pay back five dollars to Smith, is
both descriptive and evaluative at the same time, as it not only
records a fact but also entails that Jones ought to pay back that sum
1
John Searle, How to Derive Ought From Is?, Philosophical Review 73 (1964), p. 55.
See John Rawls, Two Concepts of Rules, in his Collected Papers, Harvard University Press (1999),
pp. 20-46. Rawls hesitation in extending the analogy to moral rules is striking. At the beginning of his
paper he writes that upon embracing his favored conception of rules one can state utilitarianism in a
way that makes it a much better explication of our considered moral judgements than traditional
objections seem to admit. (p. 21) In his last footnote, however, he adds, one should not take it for
granted that [the practice or game conception of rules] applies to many so-called moral rules. It is my
feeling that relatively few actions of the moral life are defined by practices and that the practice
conception is more relevant to understanding legal and legal-like arguments than it is to the more
complex sort of moral arguments. (p. 43) This ambivalence complements his lack of commitment to
utilitarianism while offering the best defense of it.
Aurel Kolnai, Games and Aims, Proceedings of the Aristotelian Society N.S. 46 (1966), pp. 103128. In the text, numbers in brackets refer to page numbers of this paper.
5
The quote is from J. R. Lucas, Moralists and Gamesmen, Philosophy (1959), p.11.
Cf. John Rawls, Kantian Constructivism in Moral Theory, in his Collected Papers, Harvard
University Press (1999), pp. 347-349.
The general lack of care in the characterization of what games are may be attributed to the belief that the
forefathers of game theory have already accomplished this task. It is noteworthy, on the other hand, that Kolnais
game paradigm owns a great deal to the model of games presented in John von Neumann and Oskar Morgensterns
Theory of Games and Economic Behavior (Princeton University Press [1944, 1947]); indeed his discussion
betrays, throughout Games and Aims, a thorough acquaintance with that book.
See Aurel Kolnai, Moral Consensus, in: Ethics, Value, and Reality, Athlone Press (1977), pp. 144164.
He writes, [a]nalogies between MORAL rules and rules of games have often been stressed in recent
ethical writingsbut the subject is too vast and complex to be discussed in the limits of this paper.
(120-121) His discussion, he adds, falls short even of the beginnings of anything like a worked-out
theory. (123)
10
Note that this argument also amounts to an objection to the game analogy. However, given the first
characteristic of his game paradigm, this objection could seem too strong. Still, while those who allow
the analogy indeed hold that games are among the practices governed by constitutive rules, it is safe to
presume that they would not want to bank on the distinction between serious and facile practices.
11
Searle, How to Derive Ought From Is?, p. 51. Cf. Philippa Foot, Introduction, in P. Foot (ed.)
Theories of Ethics, Oxford University Press (1967), pp. 11-12.
That there are indeed moral rule books is an explicit view of many rule utilitarians. Consider the arguments of J.
J. C. Smart in his Extreme and Restricted Utilitarianism, Philosophical Quarterly 6 (1956), pp. 344-354.
13
In contradistinction, moral and legal thought, when directed at political issues, are concerned with what is
objectively desirable for a political system. (128) The criteria of acceptability of rules that are to regulate and
guide political activities in constitutional regimes is among the most significant moral themes. I will not discuss
here this subject further.
10
12
here as well there are two goals that players normally pursue. So it
resembles chess to a considerable extent. Moreover, in principle, one
can specify what actions have to be taken in order to achieve a
victory, in at least the vast majority of the situations that arise in the
course of playing this game. Still, the inherent difficulty of carrying
out the best means to winning, in billiards, is a matter of outstanding
dexterity, eye-sight, nervous condition and so on. At the same time,
the view according to which factors like dexterity and eyesight
should be regarded as mediating between moral rules and their
applications, is quite implausible.14
Or it could be proposed that what could hamper the application of
moral rules in particular situations is the inevitable presence of other
agents; as morally motivated actions, just like playing chess, tend to
take place in social contexts. Assessments of what the others future
actions will be feature in reasoning about what to do; but one cannot,
generically, foist these assessments in terms of moral rules. Consider
two agents engaged in a Prisoners Dilemma game in the case of
which many confidently say that there is a morally warranted
outcome. One can claim that no matter what putative moral rule is
followed, it cannot be assured that that outcome is reached.
However, that acting upon a moral rule is justified does not imply
that that rule has to call for the achievement of some specific
outcome. In the Prisoners Dilemma game in question, one may be
called upon choosing the action that is merely conducive to the
attainment of the supposed morally warranted outcome. The
proposal that the presence of others necessarily mediates between
moral rules and their application is not sufficiently clear.
Indeed, it is not even true that in chess ONLY the presence of the
other player mediates between the two aims of winning and that of
playing that game at all. Suppose now that a chess player becomes to
know, somehow, a complete strategy of his counterpart. A complete
strategy is to be conceived of as a full contingent plan of what will be
done, in each situation that may occur in the game. Let us say that a
winning strategy is one that assures victory to someone who is in
possession of such a full contingent plan of his counterpart. But in
chess we cannot tell whether there is a winning strategy responding
to each such plans. It follows that the complexity of chess is mainly
responsible for the fact that satisfying the aim of trying to win
requires special attention to details, including the assessment of
what the other players upcoming moves may be. As by the removal
14
However, Thomas Nagel observed that not managing to save a child from a building on fire due to
clumsiness has moral relevance; see his Moral Luck, in his Mortal Questions, Cambridge University
Press (1979), p. 25.
14
15
Pondering the psychology of ones partner could contribute to the charms of chess. But attempts at
determining what he will do never loses reference to the rules of the game. Recall the third
characteristic of Kolnais paradigm, that it can be displayed as a sequence of abstract moves (that it can
be played by correspondence).
It is to be noted that following what a good strategy dictates is not following public rules. One can deviate from
it and still play the game in question; a strategy can be revised in the course of the contest, rules of the game
cannot be. Also, in any game the aims of winning and that of playing are still different, notwithstanding the fact
that when the internal aim generated by the aim of playing is taken seriously, then a winning strategy, if known, is
to be implemented. However, it seems that the Constitutive Rules thesis can be amended so that this difficulty is
met, maybe as in Rawls, Kantian Constructivism in Moral Theory, p. 348.
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15
17
18
A clear difficulty with this example is that jumping into the water may just be a matter of whim. Of
course, while you may see the merits of forcing yourself to swim, you may as well just be playful in the
jumping episode. To complete the description of the example, the primary aim, giving meaning to the
goal of swimming, has to be supplied. In contrast, everybody should have the aim of being moral,
indeed, for Kolnai human beings are constitutively moral beings. (122)
18
A fuller statement would claim that one has to will to keep the rules of morality. I do not find it
necessary to involve the subject of willing in this paper.
20
See John Stuart Mill., Utilitarianism, Oxford University Press (1991), pp. 158-160
19
Thus it misapprehends the aim and the status of being moral, and
this is because it lacks resources for accounting for the structure of
moral aims.
Now, at the same time, the Enveloping Aims thesis can come
together with an account of the status of moral rules. It can identify
criteria for attaining a local moral goal in terms of moral consensus;
these criteria are to be thought of as being inscribed into the moral
consensus. But cannot the moral consensus always be expressed in
terms of a set of rules? Note that moral consensus is sustained by
agents being actively engaged with it, so it is prior to moral rules. So
even if it could span a set of rules, as it is only by establishing
oneself firmly within the moral perspective that one can learn fully
what serving the moral purpose demands, moral requirements, we
should say, appear as a system of rules only for those who had been
acting, in a long series of cases, having that purpose foremost in
view.21 It follows that keeping to moral rules is not a matter of their
straightforward application to particular cases; and there is no
guarantee that applying moral rules would never pose a major,
possibly intellectual, challenge to agents. Also, the conception of
moral consensus invoked here admits that disagreements about the
dictates of morality are part of moral practice. And if there are
legitimate and significant disagreements concerning what moral
rules we should follow, being moral cannot be the same as doing
always what prevailing moral rules require us to do.
Three residual problems remain, however. First, moral rules are felt
to be public rules, tend to be expressed as such, and more often than
not keeping to them does not appear to issue an intellectual
challenge. Second, one cannot claim, in light of the discussion at the
end of subsection 2.3 that the force of the objection according to
which local moral aims are not autonomous has been completely
discharged. Finally, the Constitutive Rules thesis, in the form it has
been so far examined, could be thought of as just incomplete or
elliptical. Accordingly, it may be restated as claiming that moral
agents indeed are to aim at being moral and also that, in particular
cases, they are to aim at following moral rules. It could even be
granted that all the formal requirements for these aims to be in an
enveloping relation are to be taken as satisfied. Is this revisionary
view coherent?
I will discuss these problems in the last section.
21
John Rawls identifies a version of this statement as a component of the view that is the main rival to
conceiving practices as constituted by rules, Two Concepts of Rules, pp. 34-36.
20
23
Aurel Kolnai, Deliberation is of Ends, in: Ethics, Value, and Reality, pp. 44-62.
24
See Harry Frankfurt, On the Usefulness of Final Ends, in his Necessity, Volition, and Love,
Cambridge University Press (1999), pp. 82-94. Also, we may accept that everybody has an ensemble
of permanent and paramount ends before addressing issues like how far shall one look ahead when
pondering what ends to adopt, or whether it is reasonable to regard rational persons as seeking one
settled, even final, end?
21
sharp criteria for what it means to attain it. But it would be odd to
suggest that he can employ straightforwardly available rules. So we
are to return to the dictum that he does best by wholeheartedly
adopting a project pursued for its own sake, like that of determining
who is the most Homeric author among the great Victorians, and at
the same time not losing sight of the aim of putting his finger on the
essence of the epic genre. [The] individual shapes his own will
through deliberation, which means a swinging to and fro between
distinct and partly incompatible sets of purposes tied up, inevitably,
also with successive re-examinations and tentative revaluations of his
firmament of constant and ultimate aims.(126)
3.2 At one point, in the course of a short discussion of the
relationship between morality and practice in general, Kolnai
explicitly invokes the idea of the game of morality. He claims that
serving the moral purpose is, at the end of the day, in an enveloping
relationship to the aim of achieving overall happiness in ones life. 25
The structure of the argument is familiar: it cannot be the case that
we aim at being good or moral just for the sake of being happy. To be
fully consistent, he would have needed to add that the aim of being
moral derives its sense from the blanket aspiration of leading a
happy life. Instead, skirting confusion, he states that happiness
reached by transgression of the rules of the moral game, in
disrespect of its constitutive rules, would be deprived of value
(123); as if happiness derived its meaning from being moral, consider
that attaining happiness is the primary aim in his discussion. I
suggest, however, that his brief reference to constitutive rules of
morality ought not to be dismissed as an instance of selfcontradiction.
For consider how moral deliberation could be conceived of if we
denied that there were public rules of morality. On Kolnais account,
criteria for attaining the status of being moral is assured by the
moral consensus. If this is not present as a set of public rules, it has
to be accessed by moral learning, as at the outset its terms are only
available in a rudimentary manner. Indeed, the very contours of what
the moral purpose amounts to may become sharpened only if one
most assiduously seeks, on the basis of ones current understanding,
what that purpose actually is. This is potentially very demanding;
sustained attitudes like wholehearted attention and a keen interest
in the details of the situations one encounters may not be enough.
25
A case might be made out, further, for morality itself relating in a paratelic mode to the agents
conspectus of concerns, or ideal life or happiness or self-realization or summum bonum or
whichever of these and similar misleading terms one may choose to accept with due reservations.
(123)
23
26
Consider again chess. Its enthusiasts play it partly because they think that its rules are conducive to
their entertainment or to improving their mental abilities or to something else. To that extent its rules
are good. But as the aim of entertaining oneself properly is prior to that of playing chess, one can
reasonably ask the question whether the rules of chess could be improved. It is not only because of the
inchoateness of this aim that this question is actually not frequently asked. Indeed, one needs to be a
very accomplished and very bold man in order to raise seriously the question of what other rules could
a game have that would entertain chess players better; and it is not to be presumed such a person will
be found among the best players or among those who love chess most fervently. Should, however, such
a question somehow arise, it is the opinion of these latter sort of people one would care for the most.
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24
25
See footnote 1.
30
This statement is the starting point of the argument of Searle, How to Derive Ought from Is.
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