Front Page Titles (by Subject) Ought vs. Is - Literature of Liberty, April/June 1978, vol. 1, No. 2
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Ought vs. Is - Leonard P. Liggio, Literature of Liberty, April/June 1978, vol. 1, No. 2 
Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
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Ought vs. Is
“Institutions, Practices, and Moral Rules.” Mind 86 (1977): 479–496.
Defenses of liberty, to be credible, must rest on demonstrable and objective moral rules. In this light, it is important to keep abreast of attempts to derive an objective “ought” from a factual “is.”
In a now classic article on that subject (Philosophical Review 73 (1964): 43–58) and a later book, Speech Acts (Cambridge: Cambridge University Press, 1969), John Searle argued that the very language of the “institution” of promising commits us to the language of obligation. In effect, if you say “I promise,” you imply that you “ought” to keep your promise. Our language “game” rules require that such words as “promise” entail the subsequent language of “ought” and “obligation.”
Searle's claim to deriving an “ought” from an “is” is defective. Searle based his claim on the grounds that factual descriptions of institutional acts (e.g., promising) generate evaluative “ought” statements. The defect appears if we distinguish between constitutive and regulative rules. Moral rules (and obligations) are necessarily nonconstitutive rules; hence they are “regulative rules.” As regulative rules (R-rules), moral rules and “oughts” cannot be derived from “constitutive rules” (C-rules).
To define these terms: C-rules are those that “constitute,” define, or create (as well as regulate) an activity or “game” which would not exist logically apart from these rules (e.g., the rules of chess do more than regulate the game, they create chess and the very possibility of playing). R-rules merely regulate forms of behavior or games that exist independently (e.g., the rules of etiquette regulate relationships that exist even without the rules).
There is a sense in which institutional acts such as promising can be termed “right” or “wrong,” which goes beyond their mere conformity to C-rules. However this value or normative sense does not arise from the C-rules themselves, but from the fact that society consciously endows C-rules with prescriptive force because such rules promote ends that the society values.
Thus, the C-rules are not intrinsic, objective norms nor values except for society's stipulating it so. Furthermore, this restricted normative aspect of C-rules differs from the normative aspect of objective moral rules, which evaluates something as right or wrong apart from its being relative to a particular institution or practice.
The same distinction applies to those rules that evaluate an institution as being either good or bad. Some rules evaluate whether an institution fulfills the goals intended for it by society; other rules evaluate the institution itself in terms of its actual effects whether intended or not intended. In either case the moral worth of the C-rules as a whole is evaluated “instrumentally” in terms of some goals it helps to achieve.
Contrary to Searle, C-rules do not entail moral rules. Take, for example, Searle's use of the “institution” of promising. The C-rules defining the conditions for an act to fulfill the terms of a promise are merely a factual description of the promise's meaning. But the rule defining the institution of promising does not entail the desirability or obligation to keep the promise itself. The institutional rule merely describes factually what would be a “correct” move in the linguistic game of promising. In order to be obligated to keep a promise one also needs the moral or regulative rules: (1) that it is good to satisfy another's promised needs and interests; and (2) that the act of making and keeping a promise is a good thing.
We commit no logical inconsistency in the following case: we could dutifully observe the linguistic game rules of always applying the phrase “I hereby promise” to the appropriate situations, but still refuse to actually keep the promise on each occasion. Linguistic propriety does not establish an objective ethics. Another base is required to demonstrate objective values.