SEARLE ON INSTITUTIONAL OBLIGATION I John Searle sets out fiye statements, the relation of each to its successor being one of entailment (given the addition of certain tautologies) . (1) Jones uttered the words 'J hereby promise to ply you, Smith, five dollars'. (2) Jones promised to pay Smith five dollars. (3) Jones placed himself under an oblig.ltion to pay Smith five dollars. (4) Jones is under an obligation to pay Smith five dollars. (5) Jones ought to pay Smith five dollars. 1 Searle's avowed aim is to bridge the so-called fact-value dichotomy. Thus, ... no set of descripfize statements [it is often claimed] can entail an et'aillalil'e statement without the addition of at least one evaluative premise. To believe otherwise is to commit what has been called the naturalistic fallacy. I shall attempt to demonstrlte a counter*example to this thesis ... if we can present a plausible counter.example and can in addition gi\'e some account or expbmtion of how and why it is a counter-example, and jf we em further offer a theory to back up our counter-examples-a theory which will generate an indefinite number of counter-examples-we may even incline ourselves to the view that the scope of thlt thesis was more restricted than we had originally supposed.:! We are, then, to be offered an actual deduction of an eyaluative state1. John Searle, "How to Derive an 'ought' From 'js'," p. 102, originally in Philosophical Ret'ieu', 1964. My quotation page numbers refer to the pagination of the article in Philippa Foot, ed., Theori~s of Ethics (Oxford: Oxford University Press, 1968). The derivation is restated, with some changes, in John Searle's book Speech Acts (Cambridge: Cambridge University Press, 1969), Chap. 8. 2. "How to Derive an 'ought' From 'is'," p. 101. SEARLE ON INSTITUTIONAL OBLIGATION 601 ment from factual premisses, and a theory as well, which will place us "in a position to see how we can generate an indefinite number of proofs." Although, as we shall see, the deduction Searle offers us concerns itself with the institution of promising, Searle says that the same trick, of deriving normative statements from factual ones, can be carried through for any institution which is constituted, or defined, rather than merely regulated, by its rules. Other examples of such deductions are: that I ought to leave the field when the umpire shouts 'Out' following from the rules of baseball; 'One ought not to steal' as a rule of printe property; evaluative statements following from the rules of marriage, loans, and debts. The fact that Sear]c's example i<;concerned with promising may welt introduce unnecessary complications which would not appear had the derivation actually been presented using for example the rules of baseball. \\fhat is important is that the derivation proceeds from rules (constituti\-e rules) to evaluative statements. There is no suggestion that the rules used as premisses of the argument be moral rules; indeed, were the rules moral rules, then Searle's claim to have bridged the fact-value gap would be immediately vitiated, since some of the premisses would then be evaluative. Thus, the constitutive rules are not moral rules, nor are the 'ought' statements, or statements of obligation, so derived, held to be statements with occurrences of moral 'ought' or moral 'obligation'. As Searle claims, "we are concerned with 'ought', not 'morall)' ought'." S Searle's use of promising might be misleading to the reader, for after all aren't the rules of promising mor,;! rules, and hence any derived evaluative statement about the obligation to keep a promise a mOl".ll statement? Not according to Searle, for he does not consider promising an essentially moral-obligation-producing institution. I think ... that the obligation to keep a promise prob.lbly has no necessary connection with morality, It is often claimed that the obligation to keep a promise is a p.lr.\Jigm case of a moral obligation. But consider the following very common sort of exanlple. I promise to come to your party. On the night in question, however, I just don't feel like going ... I just don't go; am I immoral? Remiss, no doubt. If it were somehow very important that I go, then it might be immoral of me to stay home. But then the im3. Speech ActJ, p. 176. 602 DAVID-HILLEL RUBEN morality would derive from the importance of my going, and not simply from the oblig.ltion undertaken in promising.~ \\?hat Searle is offering then is an example of, and a method for further production of examples of, the derivation of a (nonmoral) en.luati\"e statement from nonmoral constitutive rules. The use of the example of promising should not mislead us into thinking of the rules in the premi~ses of the deri'-ation as moral rules, for Searle explicitly denic:~ that they arc in the case of promising, and in any case the use of moral rules as premisses would introduce e,"aluati\"e premisses into the argument, vitiating at once Searle's attempt to bridge the fact-valuc gap. II If we think of obligation-producing rules, we can be lead to ask: who is the subject of such obligations? \'('e could say more simply: whom doe, the rule aprl)" to?, but we must be careful here. For instance, consider the following. Thcre is a rule in Ireland, 'Drive on the Idt hand side of the road'. But no one thinks that the rule implie, a sLltc:ment of obligation for me, since I am a resident of the Commonwcalth of Massachusctts. Malaysian rules arc not thought to obligate Thais, nor Soviet law obligate Turks, nor canon law Jews. But 'we must understand 'apply to' or 'is the subject of' in a very special way. After all, in one scnse of 'apply to', the citc:d Irish rule won't apply to nondriving Irishmen. Still thcre is a ditTerence between the lri~h law not applying to a nondri\"ing Irishman and tbe Irish law not applying to a dri\ing resident of the Commonwealth of Massachusetts, and, in the Se!N: of 'apply to' or 'is the subjelt of' that we are u~ing, \\"e mean Irish Ia\\'s to apply to the former but not the latter, cycn the law about which side of tbe road to drive on. \\;'c mcan something like: who is the law addressed to, or to whom was it promulgated? In cOlbidering to whom a law applicd, or who are its addressees, therc is a temporal dimension as well as a spatial one which must be considered. The rule 'One ought to burn witches promptly after their trial' is not aJdrcssed to me, or does not apply to me, although 1 am a citizen of Massachusetts and the: law diJ apply to residents of se\'enteenth-century Massachusetts. 4. Ibid., p. 188. SE.....RLE ON INSTITUTIONAL OBLIGATION 603 These rennrks, utterly trivial as they arc (although the notion<; of promulgation and addressee of a law are enormously complex), do force Searle to answer the question: whom can the constituti\'e rules obligate, whom do they apply to, to whom are they addressed? In his original article, Se:lrle disregarded this question, except for one remark: "By undertaking to play baseball, I have committed myself to the obsen'ation of certain constitutive rules." 5 In his book Speech Acts, however, the problem recei,'es a great deal more attention.6 For instance, Searle considers the possible rejoinder that, as Llt as his doctrine goes, be could be obligated by somc institution in Australia, wholly unknown to him. Searle replies that "the notion of :In obligation is closely tied to the notion of accepting, acknowledging, recognizing, undertaking, etc., obligations in such a way as to renJer the notion of obligation essentially a contractual notion." Thus, with regard to this hypothetical group in Austr:tlia which was presumed to be c:tpable of obligating me to do some action, "Unless I am somehow involved in the original agrecment, their claims arc unintelligible." 7 Since according to Searle, obJig:tlion is a contractual notion, I must have accepted, agreed 10, or acknou-IcJgE'd th:tt those rules arc to govern my actions. In explicating the notion of institutional ohligation in this way, I take it that Se.uie means to be offering neccss3.ry 3.nd sufficient conditions for being obligated by an institution. Presumably, to claim that "the notion of [institutional} obligation [is] essentially a (011tractu:li notion" is to daim that, if I 113.\"emade a contralt with :tn institution to do something, then I ha\"e an obligation to do it, and if I ha\'e an obligation to do something which an institution requirLs (3.part, I suppose, from any separate moral obligation I might bave to do the act in question) then I have made some sort of contract. Searle describes the contractual element in various ways: accepting, acknO\vledging, recognizing, or consenting to something in some way. Now, since Searle could not want in all seriousness to maintain that I can be obligated only by institutions with which I bave expressly made a contract, or by which I have express!)" undertaken to abide, he is forced to go the way of consent theorists in political 5. "How to Derive an 'ought' From 'is'," p. 113. 6. Speech Acts, pp. 188-198. 7. Ibid., p. 190. 604 DAVID-HILLEL RUBEN philosophy and develop a doctrine pJ.rallel to that of tacit (Onsent or unwritten contract. How do we gi"e our consent to, or make a contract with, these institutions? As an example, Searle claims that "in the cãe of linguistic institutions like promising (or statement making) the serious utter.lOces of the words commit one in ways which are determined by the meaning of the words." 8 I do not explicitly consent to, or undertake to abide by, the rules of English or promising. Rather, insofar as I make a serious utterance of a certain sort, I (tacitly) undertake or commit myself to follow the rules of English or promi~ing. I do not need to adu.l!ly ~ay '1 undertake to .. :. Indeed, in the case of speaking English or promising, it is not clear that I could commit myself to speaking Engli~h or promising by making a promise in English. Rather, I commit myself to, or undertake to abide by, these instiutions in other ways: When I do assert literally that he made a promise, I do indeed commit myself to the institution in the sense that _ . . I . . . undertake to use the word 'promi~e' in accord.1nce with the literal me:ming, which litera! melning is determined by the intern.11 constitutive rules of the institution.9 Finally, The point is merely thlt when one enters an institutional activity by imoking the rules of the institution one neccss:lrily commits oneself in such-and-such W.I),S, reprdless of whether one approves or dislpproves of the institutionlO As I indicated aboyc, Searle do(:s use s(:Yeral different words or phrases as more or less synonymous \nys of describing the relation which must hold between the constituti\e rules of an institution and the person obligated: undertaking to abide by, committing oneself to the obsen ance of, accepting, recognizing, acknowledging the rules of the institution or the obligations which they impose. But since Searle explains 'commit', for cXlmrle, in terms of 'undertake', and the notion of 'undertaking' seems to occupy a central place in Searle's account, it is with this last notion that I shall deal, rather than the notion of a tacit contrJ.ct for example. 8. IbId., p. 189. 9. Ibid., pp_ 19*j*195. 10. IbId., p. 189. SEARLE ON IN'STITUTIONAL OBLIGATION 605 It is important to get clear on what the notion of 'undertake' is and what Searle uses the notion for in the derivation itself. 'Undertake' itself has a range of meanings in the dictionary, some of which m:lke it clearly a moral concept and others which do not. For example, three of the meanings are: 'enter into or upon (a task, journey, etc.)'; 'to give a promi<e or pledge that': 'to make oneself responsible for'. The first meaning is a nonMoral usc of 'undertake', the latter two arc mODI, or connected with moral concepts in certain ways. Searle must intend 'undertake' in something like one of the latter two senses, for he criticizes Hare for not recognizing that 'commit' (which Searle explains in terms of 'undertake') is normati\-e: It is a matter of immense fascination to me that authors who are 'anti-natunlists' when they think about it, tJ.citly accept the deri\-ations of eyaluative from descriptive when they are just doing philosophy and disregarding their ideology. Consider the following l'.1ss:1ge from R. M. Hare: "If a person says that a thing is red. he is wmm;lIed to the view that anything which was like it in the rele\"J.nt respects would likewise be red." 11 This then is Searle's reply to our scope question. \\1ho does a rule apply to? \\1ho are subjects of institutional obligations? Using one comcnient dictionary entry for 'undertake': an)'one who has made himself responsible for abiding by the rules. But if this is the case, surcI}' In extrl premise should be added to the derivation. Thus: ( I) One ought to leave the field after three strikes. (2) Jones hls just had his third strike. ( 3) Jonc~ has mlde himself responsible for abiding by the rules (or, ... is committed to abiding by the rules) . . '. ( 4) Jones ougH to lease the field. But, as stated, the deriyation won't do for Selrle's purposes, since one of the premisses, (3), is e\-alu.ltiw. \,'hat we now want to look at is what (if any) descripti\'e prc:mis~es could entitle Searle to ( 3), ~,nd which could then replace (3) so that the derivation could I'wcee,1 from purely descriptiye premisses to an eYaiuati\'e conclusion. if we recall the earlier quotes from Searle, when I claimed that 11. Ibid., p. 190. l' 606 DAVID-HILLEL RUBEN he was forced to develop a notion of facit consent or implicit contract, it is plain that for Searle the criterion of implicitly undertaking to abide by the rules, or of making oneself responsible for abiding by the rules, of a constitutiye rule-governed institution is simply the doing of some acts which are defined by the institution. Thus, Searle claimed that the criterion of making oneself responsible for abiding by the rules of English was simply the making of a serious English statement; the criterion of making oneself responsible for abiding by the rules of baseball was playing baseball (stealing a base, batting, or whatever). It is no inessential feature of Searle's position that the criterion of making oneself responsible for abiding by the rules is so weak, for the criterion must embrace all those whom Viedo hold to be obligated by institutions (and thus explicitly promising or making oneself responsible would bc too strong by ruling out people whom we do think obligated) and further the criterion must not include any evaluatiw element (otherwise some of the premisses in the derivation \yould be evaluative). HO'wever, if Searle's weak criterion of making oneself responsible for abiding by the rules, which is noncYaluative, works, then we arc entitled to (3) above by descriptive premisses, and thus the derivation will have no irreducibly evaluative premise. But Searle's weak, nonevaluative criterion for making oneself responsible for abiding by rules does not work. The relation between the fact that someone has performed some institutionally defined action, or observed some constitutive rule on some occasion or set of occasions, and the evaluation that the person is responsible for abiding by those rules is an extremely complicated relation. Suppose for example that Jones is coerced into playing baseball by certain threats. Then Jones is not responsible for playing baseball, or continuing to follow the rules of baseball once the threats have been remm-ed. But even if we restrict our consideration to acts where no threat is part of the agent's reason for doing the act,l!! there remain certain 12. Even if this would im'olve no moral concepts, which it does seem to do. See, for example, the notion of 'morally expected course of events' in Professor Robert Nozick's "Coercion," in Philosophy, Science and Method: Essays in Hon01' of Ernest Nagel, ed. by Sidney Morgenbesser et aI., (New York: St. Martin's Press, 1968). --SEARLE ON I:-:STlTUTIONAL OBLIGATION 607 other important complications. Suppose for example th.lt I find myself as an officer in a concentration camp 'whose duty it is to execute JC\....s. At some point I come to sec that what I am doing is evil, and I decide not to carry out certain duties I have been given, connected with the executions. It is not the case that I \vithdraw from the institution (were this possible), for rcsigning or withdrawing from an institution does normally cancel any obligations one might otherwise have had.13 Rather, I remain in the institution, but lie about my having performcd the executions. Now the question arises: have I in any sense whatever made myself responsible for those executions, simply because I have performed the executions in the past and femain a bona fide member of the institution? Do I haye any responsibility to not lie and to execute the Jews? The answer is plainly 'no' to these questions, and this can be seen in the way in which we want to answer the following kinds of questions. E\-en supposing I would not be punished for refusing to execute the Jews, do lowe my superiors any excuse, apology, or explanation for my refusal to abide by the rules of the concentration camp? \X!ould it be morally better for me not to execute the Jews and not break camp rules (perhaps by changing my duties by being transferred to another department) than to not execute the Jews and not fulfill my duties as an cxecutioner? For me to be responsible for abiding by rules, and for you to be entitled to expect me to abide by them, it would seem that the rules would have to constitute a morally permissible practice or institution. However, this qualification to Searle's criterion for m<lking oneself responsible for abiJing by the rules of an institution appears to introduce an irreducibly eniu.lti\"e element into the derivation. One premise, the one which states the conditions under which institutionally defined action (e.g., the serious making of an utter- :1I1ce)constitutes commitment to observance of the rules of that institution in the future, concerns itself with the moral permissibility or impermissibility of engaging in that pr.ltticc or institution, and thus seem normative in its import. 13. Sometimes, of course, institutions do not recognize or allow w:tys to opt out of them volunt:trily. Suppose in the <..ase I am imagining that there is no recognized way to disassociate myself from the concentration camp, and not just that I am afraid of what will happen to me if I do disassociate myself voluntarily. 608 DAVID-HILLEL RUBEN III But even apart from the criticism tbat Searle's deri,-ation contains at least one C\'aluative premise, in what way, we might a<;k,are ,ye still on the trail of nonmoral, institutioml obligation? \Vhat importance do constitutive rules havc for thc recomtructcd derivation? \'Vhatever conclusions we derivc about obligation rc\t, as it ,vere, on the fact tJut someone Las madl himself n:sponsibl<: for the doing of something, or morally entitktl others to belie\'e that he will do something. In whichever way we choose to word thi~, the obligation is a moral obligation, the duty of fidelity to my commitments, or execution of my re,ponsibilities, or whate,*er. If I make myself responsible for doing x, then I ought to do x morally rpeaking. It docs not matter whether 'x' is 'obsen'e a constitutive rule', or 'obslr\"e a set of regulative rules', or 'perform a particular action'. The bulk of Searle's argument, relying as it did on constitutive ruks and institutionalized obligations, has becomc thoroughly superfluous, for according to Searle the derivation of 'ought' or the oblit:ation st.ltement from 'is' was supposed to depend on constiL.ive nJes anJ the special kinds of obligations they imposed. But if tbe oblig.ltion is now to be based on the moral responsibility I may ha,"c assumcd by past actions of mine to do certain other things, then the falt that fl'bal I have made myself responsible for is obedience to certain constitutive rules is irrelevant to the question of what kind of obligation I have assumed, for it is the responsibility and not the constitutive rules which, as it were, is generating the obligation. The derived 'ougbt' or obligation statements will be moral claims, not (so-called) nonmoral, institutional ones, for it is the same obligation that commitment or responsibility of any sort gives rise to whether or not what I make myself responsible for is the obserYance (in the future) of certain constitutive rules. Of course, the 11 .t)' in which I make myself responsible may have something to do with rules. For example, past habitual action of mine, even if mor,llly permissible, norm.tIly gi\"es no one a right to expect, nor me a responsibility to eng.lge in, the same habitual action in the future. It is princ; pally in the case of rules where we can argue from past actions to future obligJ.tions to action, but this last point applies to all sorts of rules and not just constitutive rules.H But the ways in whid1 I can make myself re1*1. See my paper "Tacit Promising," forthcoming in Etties (Odober, 1972) for a defense of this point. ----_. ---SEARLE ON INSTITUTIONAL OBLIGATION 609 spon-;ible for the doing of something, or commit myself to do something, arc many (even aFlft from the case of generating responsibility from my pãt actiom in rule situations), and all such ways create precisely the same moral obligation, whether the ~ituation is a rule situation or not, namely the duty to do whatever I am responsible for doing. Searle's claim to ha\'e bridged the fact-value gap is without foundation, for the derivation, insofar as the conclusion really is that one has a duty to do something, rests on the suppressed moral premise that one ought to do what one hJ~ a resromibility for doing and the moral claim that the agent has a moral resr'onsibility to do something. How can Searle not have seen that, in answering the (1uestion of the scope of the constitutive rules under discussion, he had allowed into the derintion evaluative premisses? And that, in so doing. moral obligations were being derived in the conclusion and not institutional ones? And that the discussion of constitutiye rules and institutionalized obliptions was bein& rendered otiose? I think that Searle's mistake can he traced to a confu~ion o\"cr tv,o distinct senses of 'duty' :tad 'oblig.ltion'. To see this e\"en more sharpl)', suppose some Searic.ln offered us thl: following example of 3. derivation which bridged the fact-value gap.l:; (a) 'x is a concentr,ltion camp mar,hall' =df. 'x has the duty of killing Jews in the concentration camp. (b) Joncs is a conccntr,ltion camp marshall. (c) Jones has the duty of killing the Jews in the concentration camp. (d) Everyonc ought to do their duty. (e) Joncs ought to kill the Jews in the concentration camp. Since (a) and (d) are analytically true, and (b) and (() seem, as a matter of fact to be true, (e) must be true. But since Jones has quite (karl)" no reason at all to kill Jcws, (e) is either false and hence does not follow from (a) - (d), or true, but only to be O. I take it that it is not unfair to claim that a Se:lClean could offer this derivation, assuming of course that the rules of the concentration camp define certain roles and acti\'ities, e.g., being a camp marshall or calling evening role, and do not merely regulate them. Searle cbimed that "we can generate an indefinite number of proofs," and presumably such a proof can be carried through for any institution which is defined or constituted by its rules. 610 DAVID-HILLEL RUBEN taken in a descriptive sense, such that even if it is true that one ought to do something, it i~ not necessarily true that one has any reason whatever to do the act in question.1'; \,(/hat Searle has apparently done is to take the occurrence of the words 'duty' or 'obligation' in the premisses (statements (3) and (4) in the promising derivation) as normative occurrences of those words, when in fact these Occurrences arc only dc~criptive in the sense explained. That is to say, IF we think of institutions only as sets of rules, (hen the institutionalized obligations or duties \\"hich are part of the definition of the institution and are internal to it are desc~ipti\'e duties and obligations which a man may have absolutely no reason to carry out. Using Searle's terminolob,)', his mistake has been to confuse the institutionalizcd duties and obligations a man might have in virtue of the rules internal to the institution, with the 'external' statements of duty and obligation, only the latter of which are normative or reason-producing, and which do Occur in the derivation once the notion of responsibility (or commitment) has been introduced. 'Duty' seems clearly to have both, a descriptive and an evaluati\'e sense. I think that 'obligation' can bear both señes as well, for in ordinary parlance to say that a man had a legal obligation docs not necessarily imply that the man had any reason whatever to do the action in question. Not ,"crr much hangs on whether or not I have interpreted ordinafY parlance cOfrectly. All I w3nt to cbim, is, that Searle must be understood to be using 'obligation' ill this way, regardless of whether or not it is corred to Jo so in ordin.uy langu:Ige. Howe\'er, I think 'ought' docs Jlot bear both sense~; if it is true that a man ought to do something. then it Joes follow th.lt he has some reason to do it. If 'ought' had a descriptive señe, we could hJ\'e held that (e) was true and did follow from (:I) - ( d ), pro\'iJed of course that it bore that descriptive sense in (e). Since it seems that 'ought' never does have such a sense, it seems more rl.lU~ihle to hold (e) false and hence deny that it follows from (a) - (J). (c) doesn't follow because 'Juty' is used equinx:ally in the argument. In (d), 'duty' has its evaluativc or normati\*c sense, whcn:.ls in (c) it bears 16. For an elaboration and defense of the distinction between normative and descriptive senses of 'oblip.tion' 3nd 'duty', see my paper "r\atural and Positive Law Revisited," Tbe Modem Schoo/mati (May, 1972). SEARLE ON INSTITUTIONAL OBLIGATION 611 a descriptive sense since it occur~ in a rule of the imtitution. Pari pawl, in Se:J.rJe's origiml deri\'atioll, (5) doesn't follow from (1)- ( 4), because 'obligation' is used e(lui\oc:111y in (*1), where it bears a descriptive sense, and in (-4b), 17 where it b<:.lfs a nOr!11.1ti\'esense. One has some freedom in choosing preci~c:Iy where to pf:lce one's \\'edge in these derivations, but I lu\"C chosen what I think are the most pbusible places. Finally, throughout this paper I h:J.\"Cassumed, with Sc.ult:, that promising is an institution like baseball or chess in certain important logical respects. I ha\'e tried to show that some \-ery general things Searle claims about institutions constituted or defined br their rule won't bear up under examination. For cXlmple, I argued th3.t the obligation 'internal' to baseball is not normative in my señe, but that, in order to obtain a normative statement about wh3.t somwne playing baseball has reason to do, ccrt3.in other premisscs which did not concern baseball at all (for example, a pr<:mi~e about r<:sponsibilitr) had to be added. One might cavil at this argument when applied to promising itself. \Vhen I promise, I am oblig.1t<:d to do what I promise to do. Surely 1/>,1/ is a normati,'c conclusion, and no further premisses need to be added. I ha\'c no objcdion to this, and perhaps an example in terms of promising really does close the fact-value gap. If one is inclincd to this view, my argumcnt can be construed as pointing out the enormous differel1(c betwcen promising and the other examples Searle uses. In any cas<:, if Searle were right about the particular case of promising, his point is not generalizable to constitutive rule-gon:rned institutions. And given the important differences here, \.ve may come to wonder wh<:ther it is at alt enlightening to think of promising on the model of an institution defined by a set of rules. DAVID-HILLEL RUBEN UNIVERSITY OF GLASGOW 17. "(4b) one ought to do what one is under an obligation to do." (4b) is analytic only if 'obligation' is normative. Searle doesn't number this as "(4b)," but in passing from (4) to (5) he claims that onc needs a tautology analogous to (3b), and says that the relevant tautology is thc one I have numbered (4b).