On the Regulative Functions of Constitutive Rules

Constitutive rules, as prominently theorized by John Searle, create the very possibility of engaging in some form of behavior. This distinguishes constitutive rules from regulative rules, which seek to regulate antecedently extant and defined behavior. So although it is conceptually possible to drive at eighty miles per hour even in the face of a rule regulating speed and imposing a limit of sixty-five, it is simply not possible to hit a home run without the rules of baseball or create a corporation without the rules of law. Joseph Raz has argued that this is a distinction between different types of act-description and not between different types of rule, but the basic distinction, whether between different types of rules or of act-descriptions, remains widely accepted. Yet even though there is much soundness to the distinction, it tends to slight the way in which even constitutive rules have a regulative side. Sometimes this regulative side surfaces when an institution imposes sanctions for failing to behave in the constituted way, and sometimes it appears in the way in which a constituted route to some end makes it more difficult, empirically, to achieve that end in other ways. In both respects, constitutive rules have a regulative side that is rarely fully appreciated