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of ‘constitutive rules.’ Unlike ‘regulative rules’ which limit or prohibit actions that
people can intrinsically perform (i.e. rules or laws against robbery or burglary),
constitutive rules enable people to create new social institutions or institutional
facts.
Constitutive rules have the form “X counts as Y in C.”
20
At the most basic
level, a constitutive rule allows X, some brute fact or physical action
under certain contexts and circumstances C, to simply ‘count as’ Y,
some institutional fact.
21
Owing to the requirement of collective intentionality, only society (or any
collective group) has the power to recognize institutional facts. Conse-
quently, society necessarily also has the power to determine the constitutive
rules and the conditions under which an institutional fact may be created. In
the case of contracts, the law embodies the constitutive rules. Contract law
specifies the requirements and conditions (C)
under which certain utterances,
writings, or gestures (X) constitute a legally binding contract (Y).
This last observation has led to a slightly surprising, but very desirable
result. Normally, as in the case of more informal institutional facts such as
promises, the constitutive rules are not codified or formalized, but neverthe-
less exist. Consequently, the requirements are often vague and require more
broadly defined necessary conditions, such as those found in Searle’s condi-
tions for promise. However, a contract is different. A contract is a formal, legal
concept with its constitutive rules perforce well-codified in contract law.
Undoubtedly the formal legal concept of contract was preceded by millennia
of less formally determined agreements,
replete with attendant misunder-
standings and unpleasant retribution: think of the centuries of domestic
conflict turning on betrothal promises, presumed and denied.
This conclusion suggests that any semiotic model of the contracting
process can confidently use the abstract legal requirements of contract as a
bridge between the traditional practices of the business world and electronic
commerce. Therefore, a useful tool for abstracting a semiotic model for
contracts is, appropriately enough, English contract law.