The capacity of speech acts to represent objects and states...

The capacity of speech acts to represent objects and states of affairs in the world is an extension of the more biologically fundamental capacities of the mind (or brain) to relate the organism to the world by way of such mental states as belief and desire, and especially through action and perception.[^41] We fully agree with Searle’s assumption regarding the priority, biological and otherwise, of intentional states over speech acts, though we wish he had done more to exploit this insight in his recent work on social reality.

We say this not because we deny the general value of speech act theory. Our claim is, precisely, that its value should not be over-estimated, and that in particular the concern with practice, secondary or constitutive rules which we find in Hart, Rawls, and Searle has already yielded all the fruits that it is worth collecting. Constitutive rules do give rise to claims which exhibit some sort of normative force, but they are not nearly the end of the story of normativity.

A no less vital chapter in this story deals with a different sort of normative force - that which derives from intentional states. What happens if we focus not on speech acts in giving an account of legal and socio-political institutions, but rather on the intentional states which underlie them? Speech acts are in their entirety contingent, first in the sense that one can choose to perform them or not, and secondly in the sense that they need not have existed at all.

It is indeed hard to imagine a society in which something resembling promising did not exist, but given Searle’s analysis of speech acts as products of constitutive rules such a society is not impossible. Some intentional states are not contingent in either of these two senses. By Searle’s own admission, the intentional state of intending is crucially important for promising: if you promise to X then you must intend to X.

But where the skeptic can raise the concern as to why he should play the “promising game”, there is no parallel concern in relation to the phenomenon of intending. This is because what happens when one intends is not the result of applying human conventions. And while it is hard to imagine a society which did not develop a practice more or less identical to promising as we know it, it is downright impossible to think of human beings who do not intend. Previous…