IN a previous blog post, the linguistic deontological character of social institutions was discussed based on the work of the philosopher John Searle (2010). This ontological understanding of social institutions is critical not only for human rights as an accepted social institution, but also critical for the constitutions within which they are situated. With this understanding of the nature of social institutions, constitutions can be properly understood for what the meaning of the word ‘constitution’ implies: that they are documents of constitutive rules in that they create or establish offices and the deontic powers thereof. In other words, no offices or deontic powers thereof exist unless explicitly created by the relevant constitution (i.e. state or general).
This linguistic understanding of social institutions based on speech act theory also raises another point regarding meaning that is critical for constitutional interpretation: Speech act theory describes how the conditions of satisfaction of a particular meaning is intentionally imposed on speech acts (Searle, 2001: 53), which in this case is the written sections of constitutions, and this meaning only exists within a Network of other Intentional states (Searle, 1983: 20-21).
With this considered, a textualist stance toward constitutional interpretation is entirely undermined, for the meaning of the constitution can only be understood by consulting other works of the authors (such as ratification debates in the case of the U.S. Constitution) that build the Network of understanding necessary to interpret its meaning. Applying modern meanings of words and concepts to documents created with an entirely different background understanding can radically distort the meaning of the document. Worse yet is the idea that somehow the document can self-interpret, since all representation requires interpretation.
As a further consequence, constitutional law should primarily be a study of the meaning of the relevant documents, with particular legal cases playing a secondary rather than primary role in interpretation. The way constitutional law is currently taught with a focus on supreme court cases implies a legal system of common law rather than one founded on an explicit constitution. The entire point of explicit written constitutions is to advance beyond common law, and while the founders of the United States did not have a full grasp on social ontology, many had an excellent implicit understanding of the nature of social institutions.
Since constitutions are constitutive of the government in question, this also very clearly means that in the United States, the state constitutions are only about state governments and the U.S. Constitution is only about the general government. This makes far more clear where valid authority lies, as well as eliminating problematic interpretations and precedents such as applying the U.S. Constitution universally. This would eliminate, for example, the confusion with the Second Amendment of the U.S. Constitution by making it clear that it is only for the general government and that the general government has absolutely no authority to regulate firearms whatever, and all such regulation is up to each individual state government.
With that said, it is clear that such an understanding of social institutions results in a stance toward constitutional interpretation where any office of government exists only if created, and any deontic powers (positive or negative) also exist only if created through the explicit status function declarations constituting them. This is a move away from assumed power toward one where powers exist only if explicitly created, which is a more sophisticated and frankly civilized notion of social institutions and deontic powers. “Assumed powers” are appropriate for monarchy, but not for a constitutional republic.
“Isms” in any philosophy, whether political, legal, or more general, are best avoided since they are loaded terms with a large amount of background assumptions in many areas of human knowledge. It is best to simply describe the nature of the subject in question and describe the situation in these terms in order to avoid the problems of the various “isms.”
This approach highlights the dependence of political and legal philosophy on other areas of knowledge and permits the discussion to occur at these levels. However, even subjects such as the philosophy of language depend on more fundamental subjects relating to the nature of human consciousness and the world, which is why there are such incorrigible disagreements in political and legal philosophy.
What this means is that other subjects in science and philosophy (for the two cannot be disentangled) must be addressed, which will be explored throughout this blog. Western intellectual history is full of wonderful advances right alongside disastrous and highly consequential blunders, so we must separate the good from the bad.
Works Cited:
Searle; John R. (1983) Intentionality: An Essay in the Philosophy of Mind. New York, U.S.A.: Cambridge University Press (1989) ISBN: 0-521-27302-1.
Searle; John R. (2001) Rationality in Action. Cambridge, U.S.A.: The MIT Press, ISBN: 0-262-69282-1.
Searle; John R. (2010) Making the Social World: The Structure of Human Civilization. New York, U.S.A.: Oxford University Press, 1 edition, ISBN: 978-0-19-539617-1.
