In 1969, the language philosopher John R. Searle published his book “Speech Acts: An Essay in the Philosophy of Language,” wherein he developed the theory of speech acts of John L. Austin into a more normative direction. Though the philosophy of language is not the main issue of this article, Searle spoke out, for the first time, on a fundamental distinction between two different kinds of rules, namely constitutive and regulative rules. Actually, since that time the distinction between these two different types of rules has become fairly common in legal theory, but not in criminal procedure law or in the theory of procedure law. Only sporadically have German legal scholars gone into this distinction. This is astonishing with regard to criminal procedure law in particular because, even before 1969, some scholars had construed procedural rules as rules of a game. In doing so, they addressed an important characteristic of constitutive rules, namely the expression of the conditions of a certain result. However, the construction of procedural norms as rules of a game is imprecise because not all procedural norms actually work in this way. This becomes clear when one transfers Searle's distinction to criminal procedure law.

John Searle's The Construction of Social Reality is beguiling. It tempts one into an individualistic understanding of society and institutions, not by arguing so much as by telling a seemingly plausible individualistic story. That story has three main components: collective intentionality (collective intentionality is individualistic, because in spite of its we-content, it is always the intentions of individuals); functions and particularly a special subclass of agentive functions, namely status functions; and finally constitutive rules. In this discussion note, I focus on the third of these, an idea I have long felt to be problematic. The idea of constitutive rules is a theme that goes back to Searle's own 'How To Derive "Ought" From "Is"' (1964) and Speech Acts (1969), and before that to John Rawls' 'Two Concepts of Rules' (1955). First, in my view, what Searle construes as a distinction between two kinds of rules is, on his own analysis, really a distinction between two kinds of action descriptions. I do not dispute that there are rules with the form that Searle attributes to so-called constitutive rules: 'X in circumstances C counts as Y'. So I am unclear whether my first point about the constitutive v. regulative rule distinction will matter to his construction of social reality. However, I have long been sceptical of this distinction, and it is a scepticism I want now to air. What is the alleged contrast between constitutive and regulative rules? A regulative rule 'regu

made, as John Searle notes, between “regulative” and “constitutive” rules.31 Regulative rules … among innumerable social facts. John Searle’s distinction between “brute” and “institutional” … as John Searle indicates, between regulative and constitutive rules." Regulative rules regulate

institutional in nature. John Searle’s distinction between regulative and constitutive rules is highly relevant … essential to remember Searle’s distinction between regulative and constitutive rules (1969, 1995, 1998) … Searle’s theory of constitutive rules. I argue that political constitutive rules do not always make possible

In The Construction of Social Reality (Searle 1995) and in several subsequent works, John Searle has developed an extremely elegant and original theory about institutions. Moreover, that book has reinvigorated an old discussion on the ontology of the social world that languished in obscure sociological treatises. Searle likes to present his theory of institutional facts as a purely analytical inquiry about the logical structure of institutional reality. Precisely because his task is philosophical in nature, he feels that he can proceed without paying much attention to positive theories in the social sciences about the emergence and functioning of institutions. Actual institutional facts (the existence of money, people getting married, etc.) appear as illustrations of a highly abstract theory, not as objects of empirical scrutiny. His goal is elucidatory, not explanatory. He wants to make clear how institutions can be constructed, how institutional reality is possible within the physical world, not under what conditions institutions survive, or why different societies have different institutional orders, or how institutions evolve and change. However, this sharp separation between philosophical and positive theories about institutions is not always possible or desirable. I want to argue in this chapter that a closer look at positive theories about institutions and rules shows that Searle’s philosophical analysis is not necessarily wrong, but onesided and incomplete. This is du

The paper deals with the problem of delimitation of regulative and constitutive rules. I argue that while regulative rules are and remain a genus of their own, they do have a constitutive import, because they (i) define new forms of behaviour (behaviour compliant with them), (ii) take constituted entities as “input”, (iii) redefine old forms of behaviour as such to which a deontic modality applies and (iv) help to carve out new possibilities of behaviour from a continuum of only potentially distinguishable possibilities.

which applies equally to everyone. Another distinction is between constitutive and regulative norms. Constitutive norms are part of the definition of a specific Normativity concerns the standards of what people should do, believe, or value. It is a quality of rules, judgments, or concepts that prescribe how things should be or what individuals may, must, or must not do. Normative claims express what ought to be the case, such as "you should not smoke". They contrast with descriptive claims about what is the case, such as "you smoked yesterday". Normativit A… Agent-relative normativity encompasses requirements that in some sense depend on and affect a specific person but not others. It may arise from the particular social role of a person, such as standards or expectations associated with being a teacher, doctor, or mother. Previous behavior can also be a source of agent-relative normativity, like when someone should do something because they made a promise. Agent-relative normativity contrasts with agent-neutral normativity, which applies equally to everyone. Another distinction is between constitutive and regulative norms. Constitutive norms are part of the definition of a specific activity. For example, the constitutive norms of soccer determine what counts as a goal and how players may interact with the ball. People who do not follow constitutive norms of an activity are not engaged in this activity.… Li…