Famously...

Famously, Hart charged that Gustav Radbruch’s abandonment of positivism in the post-Nazi era was the result of his “half-digested” understanding of “the spiritual message of liberalism”,[^34] whereby Radbruch had failed to see that even the staunchest positivists share the “conviction that if laws reached a certain degree of iniquity then there would be a plain moral obligation to resist them and withhold obedience”.[^35] Presumably, Hart would agree that this “plain moral obligation” is not a game-related obligation.

📌Significantly however he does not discuss what type of obligation it might in fact be, and this is the sort of discussion that Searle avoids as well.

To see that something is wrong with the identification of all normativity with the normativity of games, we can appeal to Wittgenstein’s remarks on the nature of games in the context of his treatment of the notion of family resemblance in the Philosophical Investigations .[^36] According to Wittgenstein, no definition formulated in terms of necessary and sufficient conditions can apply to all games.

In light of Searle’s views on what we have called soft-normativity, however, it is tempting to suggest that being created by a set of constitutive rules would amount, precisely, to the sought-for definition. Whenever you are in the presence of an entity which exists in virtue of constitutive rules, you are eo ipso in the presence of a game, and vice versa .

📌This resolution of Wittgenstein’s puzzle comes at a price, however - for it forces an over-large scope upon the notion of game, which now turns out to include socio-political institutions like promising, punishment, marriage, and government. Note that if Searle and our authors are correct, then this would in no way count against it.

For whenever Searle, Hart, and Rawls wish to explain the normativity of such institutions they do indeed invariably end up talking about the way in which swinging at the third strike entails that you ought to leave the baseball field. This move, if we are right, is not a matter of happenstance. Rather, it reveals that Searle and our other authors have maneuvered themselves into a position where they do not have the tools to draw the distinction between games and socio-political institutions.

Part of the compelling force of the “why should I play this game anyway?” objection to the thesis that all normativity is soft normativity turns on the conventional character of games.

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