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revus (2016) 30, 9–32
Bruno Celano*
Pre-conventions
A fragment of the Background 
In this paper I argue that there exist conventions of a peculiar sort which are neither 
norms nor regularities of behaviour, partaking of both. I proceed as follows. After a brief 
analysis of the meaning of ‘convention’, I give some examples of the kind of phenomena I 
have in mind: bodily skills, know-how, taste and style, habitus (P. Bourdieu), “disciplines” 
(M. Foucault). Then I group some arguments supporting my claim: (i) considerations 
about the identity conditions of precedents (D. Lewis) and about the projectibility of 
predicates in inductive inference generally (N. Goodman); (ii) thoughts about rule-fol-
lowing (L. Wittgenstein); (iii) an examination of some of J. R. Searle’s ideas about the 
“Background” of intentionality. I conclude with some remarks about the time-honoured 
antithesis ‘nature’ v. ‘convention’. | The Italian original of this text was published in: Ra-
gion Pratica 2014/2: 605–632.
Keywords: convention, custom, rule-following, projectibility (induction), the Background 
of intentionality
“… because in every one habit [ethos; Bekker: consuetudo] 
is a matter of importance, since it soon becomes a second nature [physis]” 
Aristotle, Problemata, XXVIII
1 INTRODUCTION
I will argue that there are entities that can be plausibly called ‘conventions’, 
which are neither mere de facto regularities, nor rules (norms), but that – in a 
sense to be specified – have both the character of de facto regularities, as well as 
a normative character: they are, literally, ‘normative facts’. This paper attempts 
to isolate these entities.
The matter is delicate. Philosophers usually distinguish, and with good rea-
son, between rules and regularities, between facts and norms. In each pair, the 
two concepts are thought of as mutually exclusive. The distinction is intuitive, 
and it appears, at first sight at least, incontrovertible. The entities that we are 
trying to isolate are, mostly, at the edge of our visual field – and delimit it. For 
this reason, they usually go unnoticed, and to see them we need to try and look 
at them from the corner of our eyes. (These are only metaphors, of course). 
* bruno.celano@unipa.it | Professor of Legal Philosophy at the University of Palermo (Italy).
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Usually, whenever we discuss particular moral, legal, or political problems, we 
distinguish between a de facto regularity, and a rule; on the one side we have 
facts, on the other, norms. We do well to distinguish between them. Confusing 
facts and rules is, indeed, a cardinal sin.1 
The entities that I will discuss are, as I said, conventions. I do not mean to 
suggest, of course, that what I will try to pin down is the only meaning of ‘con-
vention’; nor, even less, the ‘true’ meaning of the word (whatever that might 
mean). The term ‘convention’ has, simply, more than one meaning. For this rea-
son, it is appropriate to begin with an exploration – albeit only amateurish – of 
its semantic field.
2 THE WORD ‘CONVENTION’: SOME MEANINGS
As a first approximation, it is safe to say that, in Italian (as well as in similar 
languages2), the semantic field of “convenzione” (the word usually translating 
‘convention’) is divided into two distinct areas. In a first sense, the term refers to 
an explicit agreement, which is conscious and deliberate, between multiple par-
ties; or, to the result of such an agreement (sometimes, an assembly which is as-
sumed to have the task of reaching an agreement of this kind). In a second sense 
the term refers instead to social norms, customs, ways of behaving, that are 
consolidated by tradition. The elements that are common to the two areas are:
(1) The idea of an ‘agreement’, using this term in a very generic and vague 
way: a generic ‘con-venire’, ‘being together’, ‘going together to the same place (or 
in the same direction)’. A very sketchy idea, nothing more. 
(2) The idea of arbitrariness: a convention might have been (at least partly) 
different from what it is, without significant changes (with respect to some cri-
terion, more or less precisely defined). When X – a rule, a sign, and so on … – is 
conventional, it is, within certain limits, immaterial (not necessarily completely 
immaterial) whether X has certain features rather than others; what matters is 
that those, and not others, are the features that are commonly accepted.
This is, however, only a first approximation. In the semantic field of ‘con-
venzione’, one should distinguish between two further areas. On the one hand, 
there is the idea of an agreement – which can be either explicit or tacit – in-
formed by the “perception of a common interest”, in Hume’s words;3 that is, 
the reasoned pursuit, by each of the parties involved, of their own goals (in this 
1 Celano 1994.
2 What I say in this section does not necessarily apply, in unrevised form, also to the English 
word ‘convention’ (stemming, of course, from the same Latin root as the Italian ‘convenzi-
one’).
3 Hume 1975: 257.
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case, I will speak of a ‘rational explanation’, or of a ‘train of reasoning’ explaining 
the behavior of the relevant parties; this reasoning, too, may, in turn, be tacit or 
explicit).4 On the other hand, the idea of a shared, and established, manner of 
doing things, a way of thinking or acting, which is not explained by a train of 
reasoning, be it tacit or explicit.
This distinction produces an ongoing ambiguity in the use of the term. If 
one emphasizes the agreement-aspect (an agreement explained by a train of 
reasoning), leaving aside the antithesis ‘tacit’ v. ‘explicit’, one ends by oscillating 
between contract and convention,5 or by recording a tight connection between 
convention and custom (according to some of the many meanings of the word 
‘custom’).6 But apart from this ambiguity, one should keep in mind the possibil-
ity of conventions – both explicit or tacit – that are not explained by a train of 
reasoning (that is, conventions which are not amenable to a rational explana-
tion).
The semantic field of ‘convenzione’, in short, is articulated through two axes 
of differentiation: the antithesis ‘rationalizable’ (explained by a train of reason-
ing) v. ‘non rationalizable’, and ‘tacit’ v. ‘explicit’. 
If we now try to follow the thread of this double articulation, isolating these 
different conceptual possibilities, we move beyond a mere exploration of the 
semantic field of the word. Rather, we are engaged in the search for an explana-
tory redefinition of the term – more precisely, a rational reconstruction of a 
plurality of different concepts of convention (or ‘convenzione’; from now on, I 
shall use the two terms indifferently).
3 CONVENTION: A FAMILY OF CONCEPTS
If we cross these two axes of differentiation, we obtain a matrix with four 
boxes, corresponding to four different notions of convention.
The entities that I will try to isolate occupy – but do not exhaust – one of 
these boxes. The main modern and contemporary theories of conventions oc-
cupy one of the remaining boxes. Let us see.
The box which results from the combination of the two traits: 1. ‘ train of 
reasoning’, and 2. ‘explicit’ – that is, conventions that are explicit agreements, 
backed by a train of reasoning – is occupied by phenomena such as contracts, 
multilateral promises, treaties, and the like. The relevant theories try to account 
4 The mere possibility of reconstructing the relevant actions as having such a structure is not 
enough. This would make the notion too generic.
5 This is how one may come to the paradoxical interpretation of Hume as a contractarian 
(Gauthier 1979).
6 Celano 1995, 2013.
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for these phenomena as the product of self-interested behavior by rational 
agents; in their extreme forms, they explain conventions as agreements that are 
reached by subjects whose behavior maximizes expected utility. (The crucial 
problem for these theories is to account for the principle pacta sunt servanda in 
terms of rational choice).
To date, the most influential theories of conventions are those of David 
Hume7 and David Lewis.8 These theories try to account for conventions that are 
agreements (in the generic sense; see above, sect. 2), backed by a tacit train of 
reasoning. Hume and Lewis – and, in their wake, others – provide an explana-
tion of conventions as the result of decisions by rational individuals pursuing 
their own interests, in the absence of an explicit agreement (and in the absence 
of an authority that enforces it).
There remain, in addition to the two boxes marked by the presence of a train 
of reasoning (explicit agreements: contract; and tacit agreements: conventions à 
la Hume, or Lewis), two boxes left. Here, I will not deal with explicit agreements 
that are not backed by a train of reasoning. Social groups usually have explicit 
conventions that are not, or at least do not seem to be, amenable to rational 
decisions by the individuals involved.9 The phenomena that interest me occupy 
the fourth box: tacit conventions that are not backed by a train of reasoning.
This covers different possibilities. The idea that interests me is this: conver-
gent behavior (behavior which is in ‘agreement’, in the generic sense indicated 
above, sect. 2) which is not a biological regularity, and is the result of learning, 
but which is also automatic: it is spontaneous (unreflective), rapid, fluid, effort-
less.10 Therefore, it may as well be particularly rigid, mechanical, blind, dumb. 
Conventions – to use yet another metaphor – that are part of the body, in the 
flesh, so to speak, and have become as natural as breathing, a ‘second nature’.11
All of this, of course, stands in need of clarification. I will proceed as follows: 
in the next section, I will provide some examples of the phenomena I have in 
7 Hume 1976.
8 Lewis 1969.
9 Proponents of an inflexible rational choice-based methodological individualism will (im-
plausibly) deny this. But I shall not go here into the controversy between advocates of homo 
economicus and defenders of homo sociologicus. It is enough for my purposes that the one 
indicated in the text is in fact a coherent conceptual possibility – even if the concept turned 
out to be an empty class.
10 These are, by and large, the traits that D. Kahneman (2011) attributes to the workings of Sys-
tem 1. I say ‘by and large’ because the workings of System 1 include biological phenomena as 
well.
11 See – albeit confusedly – Murphy 2007: especially at p. 54: “custom /…/ must be analyzed into 
two more basic notions, habit and convention” (“customs are habitual conventions and con-
ventional habits: custom naturalizes conventions just as it conventionalizes human nature”). 
(Here, ‘custom’ expresses the notion of convention I am interested in). Notice the usual ambi-
guity between ‘custom’ and ‘convention’ (noted in sect. 2, above).
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mind. Later on, I will present some arguments supporting the conclusion that 
there exist, indeed, conventions of the relevant sort, conventions that are ‘em-
bodied’, and that these are normative facts. The arguments themselves are not 
mine; but the light in which I present them is, it seems to me, somewhat origi-
nal – specifically, the idea that these arguments may illuminatingly be viewed as 
all leading to the same conclusion, and the spelling out of this conclusion.
4 PRE-CONVENTIONS: SOME EXAMPLES
Before going on, however, I should note a difficulty which is implicit in what 
has been said so far. I said that one of the axes articulating the semantic field 
of the term ‘convention’ is the antithesis ‘tacit’ v. ‘explicit’. I pointed out that the 
entities that I am trying to isolate are ‘tacit’ conventions, ‘tacit’ in the sense of 
automatic: regular convergent behavior that, while not a biological regularity 
(e.g. breathing), is spontaneous, unreflective, fast, fluid, effortless. The difficulty 
is this: human beings are made in such a way that everything, or almost ev-
erything – even the demonstration of Gödel’s theorem, or the selection of an 
efficient allocation of scarce financial resources on a certain market – can, by 
virtue of a learning process, become automatic. Anything, or almost anything, 
that can be learnt can become ‘second nature’. This fact threatens to undermine 
our reconstruction. Thus, for example, it is possible that those who follow a 
convention à la Lewis (a tacit agreement supported by a train of reasoning; see 
above, sect. 3), and for which this convention has become obvious, have a “tacit 
understanding of it, which they cannot easily articulate to outsiders”.12
This is an endemic problem when dealing with intentional phenomena. So, 
for example, each one of us has, in every moment of her life, countless tacit 
beliefs (I believe, for example, that the apartment that I live in is on the fourth 
floor); but it is not easy to identify the features that distinguish a belief of this 
kind from other similar entities, which are in some sense tacitly present in us, 
but that it would be quite odd to call beliefs – such as, for example, the ‘belief ’ 
that the Earth existed before I was born.13 Of course, if I were asked whether 
or not the Earth existed before I was born, I would answer, yes (that is what I’m 
doing right now), just as I would answer yes if I were asked whether or not I 
live on the fourth floor. But is this enough to say that ‘The Earth existed before 
I was born’ is, and was, the content of a belief of mine, albeit a tacit one? If so, 
there will be no limit to my tacit beliefs (do I have the tacit belief that I am not a 
worm?). Similarly, returning to the case of those who follow a Lewis-convention 
which has become for them ‘second nature’ we can say, of course, that what they 
12 Sugden 1998: 379.
13 See in general Lycan 1986. The example is taken from Wittgenstein 1969.
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are doing is implementing a train of reasoning that is ‘within them’, in a tacit 
and non-articulated way – just as a tacit belief proper. But it is unclear what that 
might mean, if not that they behave as if they were doing this. But this appears 
to be question begging. When the convention has become ‘second nature’ what 
guides their conduct is, in some sense (see below, sect. 6), what they actually do.
These considerations show, I think, that it is necessary to distinguish two 
senses of the adjective ‘tacit’. In the first sense, it is used to refer to a tacit belief 
proper (‘I live on the fourth floor’); in the second, it refers to entities that can 
only improperly be called ‘beliefs’ (‘The Earth existed before I was born’; ‘I'm 
not an earthworm’). Or, returning to our case, one should distinguish between 
the sense in which a ‘train of reasoning’ supporting a Lewis-convention can 
originally – i.e., when the convention comes into existence – be called ‘tacit’; 
and the sense in which it can be called ‘tacit’ when the convention has become 
‘second nature’. The entities that interest me are agreements which are ‘tacit’ in 
the latter sense. (The crucial point, as we shall see – below, sect. 7 – is that the 
entities in question are not intentional phenomena).
Let us now consider some examples of the kind of phenomena I have in 
mind. Not all the things that fall in each of the areas that we shall now review 
are conventions. But in each of these areas there is room for the conventional.
(4.1) Consider learning a sporting skill such as front crawl.14 What is the cor-
rect swimming stroke in front crawl?
Human life is full of things like that: a certain way of walking, of sitting ... 
these things are not sets of rules. We can certainly, in many such cases, identify 
or conjecture relevant rules – rules that maybe we cannot formulate. But the 
correct stroke in crawl (not, of course, a stroke, a token, but the type), the way of 
walking we call ‘marching’ etc., are not, in themselves, sets of rules.
Nor are they, on the other hand, de facto regularities. Granted, when one or 
more individuals swim the crawl, or march, their behaviors are, under some 
respect, regular. But the correct stroke of front crawl, or the way of walking we 
call ‘marching’, are precisely the respect under which their behaviors are regular, 
and what guides these behaviors.
The essential point is that these things are abstract entities (not an actual 
behavior, but its form); but they are in the body: those who know how to swim 
the crawl, or march, have these forms in their body. The correct stroke of front 
crawl or the way of walking we call ‘marching’ are tacit bodily schemes, which 
are intermediate between an image (e.g., a mental picture of somebody swim-
ming, or marching) and rule:15 embodied diagrams that establish what to do, 
what is the correct, the right or proper way to proceed. And in these diagrams, 
14 The example is taken from Casey 1998: 208–212.
15 Casey 1998: 211.
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or at least in many of them, there is a more or less conspicuous conventional 
component. Human biology sets the limits, a frame. But within these limits we 
then indulge our whims; and the limits themselves can, sometimes, be manipu-
lated. What front crawl is, is – in part – an arbitrary agreement (in the generic 
sense introduced above, sect. 2).16 Because of this conventional component, 
these wired-in forms (forms in the body, that is) are, inseparably, both natural 
(a ‘second nature’) and cultural17 (I return below, in sect. 8, to the antithesis 
‘nature v. culture’).18
The point may be further clarified by recalling familiar experiences, e.g. 
learning to ride a bike. John Searle provides an illuminating description of this 
kind of process:
As the skier gets better he does not internalize the rules better, but rather the rules 
become progressively irrelevant. The rules do not become ‘wired in’ as unconscious 
Intentional contents, but the repeated experiences create physical capacities, pre-
sumably realized as neural pathways, that make the rules simply irrelevant. ‘Practice 
makes perfect’ not because practice results in a perfect memorization of the rules, but 
because repeated practice enables the body to take over and the rules to recede into 
the Background /.../ On my view, the body takes over and the skier’s Intentionality is 
concentrated on winning the race.19
The central idea is aptly captured by the phrase the body takes over. What 
the body is doing, from now on, is not a mere de facto regularity, but something 
that is in between a norm and a regularity: A way of doing things, the way in 
which ‘one does’ this or that. 
We shall examine later on (below, sect. 7) Searle’s argument. But I should in-
dicate a point of crucial importance now. L. Wittgenstein, as we shall see (below, 
sect. 6), has shown that similar considerations apply also to that particular kind 
of human ability that is the mastery and use of concepts, or rule-following. 
16 If these things were rules, we should say that they are ‘constitutive conventions’. (This notion 
has been worked out by Marmor 2009, exploiting Searle’s notion of a constitutive rule). But 
they are, in fact, constitutive conventions which are not rules.
17 Casey 1998: 212.
18 A comment is in order here. As remarked above (see sect. 2), Hume’s account is usually re-
garded as the paradigm case of an account of ‘conventions’ in the sense of tacit agreements 
backed by a train of reasoning. Hume’s well known example of the two rowers (1976: 490) 
who mutually adjust the pace of their rowing, however, is an example of the exercise of a 
physical ability. True, the two rowers’ actions are guided, as Hume says, by the perception of 
a common interest: the two want the boat to proceed, and to proceed as fast and smoothly 
as it can; and they realize that, in order to accomplish this, they need to synchronize their 
rhythm. But what they do – synchronizing their actions, that is, their convention – consists in 
a bodily activity that, in it and of itself, does not – not necessarily – include a train of reason-
ing. Hume’s account has a wider scope than it is usually believed. 
19 Searle 1983: 150–151. Italics are mine.
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(4.2) G. Ryle20 famously distinguishes between two kinds of ‘knowing’, or 
knowledge: know-that, or propositional knowledge; and know-how: knowing 
how to do something, even if you are not able to say which are the rules one 
should follow in order to do it. The content of ‘know-that’ is propositional: it 
can in principle be expressed – even though it is not necessarily conscious – 
through a declarative clause (a that-clause). This may be a descriptive proposi-
tion, or a set (possibly, a system) of propositions of this kind; or a rule, a di-
rective, or a set of rules. To ‘know-that’ is, in this sense, knowledge of a set of 
propositions.
The basic idea is that ‘know-how’ is heterogeneous with respect to, and there-
fore irreducible to ‘know-that’ – in opposition to the idea that, e.g., to know how 
to play chess is not different from knowing the rules of chess, and that playing 
chess is nothing but to be guided by these rules21 (below, in sect. 6, I will focus, 
following Wittgenstein, on the apparent simplicity of ‘rule-following’). Not only 
in the sense that it may well happen that I know how to do a certain thing, and 
I do it, without knowing the rules that I have to follow in order to do it, or with-
out knowing many of the relevant facts – general or specific –, or even having 
erroneous beliefs thereabout. But also in the sense that, often, those who do not 
know how to do a certain thing are able to state – they know – the same propo-
sitions about what doing such a thing requires, as those who, in addition, know 
how to do it. So, turning back to the example cited above (the cases discussed 
in the present section, sub 1), are, in fact, cases of ‘know-how’), someone who 
cannot ride a bicycle may well be able to say the same things about how you go 
cycling, as someone who can do it (‘One must keep in balance’, ‘You must push 
one pedal, then the other’). The difference between the two seems to consist 
precisely in knowing how to ride a bicycle.22 It may even happen that the for-
mer has propositional knowledge which is much more complex and in-depth 
than the one the latter has (e.g., knowledge of the physical laws that govern the 
complex processes we call ‘cycling’), but does not know how to ride a bicycle 
(unlike, e.g., a child who has not studied physics). To put it with Searle once 
again, at some point in the process of learning, the body takes over.
The question of whether ‘knowing-how’ is indeed irreducible to any form 
of ‘knowing-that’ is controversial. Proponents of an, as they say, ‘intellectualist’ 
account of ‘know-how’ reject non-reducibility. Proposals for reduction, more or 
less ingenious, have been numerous. I cannot here adjudicate the merits of this 
debate. I shall limit myself to two observations.
(A) From a conceptual standpoint, reduction proposals, even though sophis-
ticated (sometimes precisely because too sophisticated), appear implausible. 
20 Ryle 1949.
21 Fantl 2012.
22 Fantl 2012.
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(B) Recent studies in cognitive psychology23 tend to corroborate, experimen-
tally, non-reducibility.
Activities that can be the subject of ‘know-how’ may be of a more or less 
conventional kind – e.g., to swim front crawl, or to play chess. Which acts con-
stitute ‘playing chess’ depends on arbitrary (in the sense indicated above, sect. 
2) agreements (in the generic sense indicated above, sect. 2).
(4.3) We say of a person that she has style, or that doing this or that is in her 
style. The same may sometimes be said of groups, variously identified. Style 
does not so much depend on what one does, but on how – the ‘way’ in which – 
one does it. And often it is style that makes the difference: worth – better, worse, 
admirable, unseemly, etc. – is often a matter of style.
What is style? Taste is a similar phenomenon. Tom has 'good taste' (or 'bad 
taste'), in general or, more plausibly, in this or that field (wine, cinema, etc.). 
Maybe Harry has learnt that tasteful people appreciate x, y and z (this or that 
wine, for example), but when it comes to choosing between new options, which 
are not already included in the list, he mistakes disastrously: he does not have 
good taste (a person of good taste would have never preferred q over w).
Style and (good) taste are notoriously not sets of rules. In two ways: first, 
purported codifications of style or taste in handbooks or manuals ('The Art 
of ...') have something hopelessly contrived and cloying. It is not so much that 
the rules are too complicated to be compressed in a handbook – the very idea 
of a codification (of style, or taste) betrays a misunderstanding (someone who 
engages in the project of codification does not understand, in fact, what is at 
issue; the very idea of reducing style, or taste, to a set of rules betrays a certain 
lack of style, shows bad taste). Second, someone who has style, or has good 
taste, does not choose this or that by applying rules but spontaneously (those 
who follow the manual will be, at most, a boor who tries to pass himself off as a 
person of good taste). Granted, in the relevant fields (be it wine, cinema, or any 
other) there may be rules, of various types, that cannot be violated by those who 
have style, or taste. But style and taste, in themselves, are precisely what exceeds 
the mere application of rules – or, if you will, they are the right way of applying 
them.
And this takes us to the other side of the coin. Style and taste are not, as we 
have just seen, sets of rules. But neither are they, on the other hand, mere de 
facto regularities. Of course, he who has style, or taste, chooses certain things 
regularly. His is a disposition to choose in a certain way. But this is not a disposi-
tion of the same kind as, e.g., the disposition to close one’s eyes in the presence 
of a strong light source, or a conditioned reflex. It is a disposition to choose in 
the right way – where, as we have just seen, which way is the right one does not 
23 See for example Wallis 2008.
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depend (solely) on rules. Therefore, it is a normative disposition – again, an em-
bodied norm (the body takes over). 
And it is plausible, if not obvious, that this territory – who has style, what 
good taste requires – is also occupied by arbitrary agreements (in the generic 
sense; above, sect. 2), i.e. conventions.
(4.4) Style and taste are parameters of social differentiation, and of classifica-
tion and hierarchy within social groups. This idea was developed systematically 
by P. Bourdieu.24
Differences and hierarchies of social class, or of gender, are embodied in 
styles: one's gestures, posture, or the way one eats, or walks, and so on. “Taste, a 
class culture turned into nature, that is, embodied, helps to shape the class body 
/.../ the body is the most indisputable materialization of class taste”.25 
In order to account for these phenomena Bourdieu works out the concept 
of habitus. An habitus is a set of dispositions (inclinations, tendencies, proclivi-
ties), acquired (most of them inculcated when we were children), consolidated, 
which are “a way of being, a habitual state (especially of the body)”,26 and oper-
ating as “generative schemes”:
principles of the generation and structuring of practices and representations which 
can be objectively ‘regulated’ and ‘regular’ without in any way being the product of 
obedience to rules.27
An habitus, therefore, is not a set of rules. Rather, it is a set of dispositions 
that have been acquired and have now become natural (“history turned into 
nature”28), fixing the right way (an embodied norm) to proceed in new circum-
stances: the “generative principle of regulated improvisations”.29
(4.5) M. Foucault30 developed the concept of “disciplinary power”. 
Disciplinary power is a form of power which, according to Foucault, has been 
a common feature of European society since roughly the eighteenth century 
(the reliability of Foucault’s historic claims does not concern us here), model-
ing and shaping the bodies on which it is exercised – its correlates are “docile 
bodies”. It works, that is, through continuous, uninterrupted coercion, in the 
form of indefinitely repeated exercise, and examination; each exercise becomes 
a phase in a perpetual examination, and vice versa each exam is an exercise. 
Disciplinary power does not seek to bring about the performance of actions, or 
24 Bourdieu 1979.
25 Bourdieu 1979: 199.
26 Bourdieu 1977: 214.
27 Bourdieu 1977: 72.
28 Bourdieu 1977: 78.
29 Bourdieu 1977: 78.
30 Foucault 1975: part III.
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omissions, via the threat of punitive sanctions in case of breach of directives. Its 
typical form is, instead, training. In this way, it aims to model the bodies that 
are its object to the most minute detail, in what they do, in their attitudes, their 
gestures, their looks, tone of voice, and so on; and this for every moment of 
the performance of the activities that are so regulated – at its extremes, the en-
tire life of the subject. In barracks, colleges, schools, prisons, hospitals, factories 
(and, as always, in convents) disciplines transform farmers into soldiers, unruly 
children into school-kids, criminals into prisoners, sick people into patients, 
and so on, through uninterrupted training, affecting every detail and every mo-
ment of the life of those disciplined. They aim to wire dispositions into bodies 
that become ‘second nature’. 
In each of the areas we have reviewed there is room for arbitrary (in the 
relevant sense, above, sect. 2) and tacit (in the second of the two senses dis-
tinguished at the beginning of this section) agreements (in the generic sense; 
above, sect. 2).31 I shall call these entities ‘pre-conventions’. The term ‘pre-con-
ventions’ is not used to suggest that these are things that precede, or in some 
way come before, conventions. Rather, it should be understood in the sense of 
‘conventions that are first’ (or ‘come before’): conventions that are mostly in the 
background of our activities and thoughts, and that, passing usually unnoticed, 
delimit their spaces.32
5  ARGUMENTS (I): INDUCTION, SALIENCE  
AND PROJECTION
I now turn to a summary presentation (it is, in fact, the evocation of argu-
ments that I assume to be, more or less, already known to the reader) of some 
arguments that support the view that there exist pre-conventions – more spe-
cifically, these arguments show that there is room for the existence of pre-con-
ventions (they ‘leave room’, or ‘open up space’, for the latter), and that it is very 
probable – in fact, obviously true – that this space is not empty. These argu-
ments are different in their content, in their conclusions, and in their conse-
31 It is true that these two senses have not been defined, but merely illustrated (at the beginning 
of the present section). But, as I said, the problem – which is an hard one, and that I am unable 
to resolve – of satisfactorily defining them does not specifically concern the phenomena that 
we are discussing; it affects, rather, the whole domain of intentional phenomena. I hope that 
a simple illustration is enough. 
32 I wish to clarify, once and for all, that there is nothing inherently nice, or good, or just, or holy, 
in pre-conventions. A pre-convention may well be abhorrent. The fact that a pre-convention 
is normative does not entail, or in any way imply, that it conforms to justice. It does entail, 
presumably, that it somehow expresses one or more values. But the connection might be a 
distorted, a perverted, or a paradoxical one. Or, in any case, it may well be that, in the circum-
stances, its value is very low, or close to irrelevant. 
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quences. But they turn out to have similar implications from the point of view 
that concerns as here.
The first argument is drawn from Lewis’ theory of conventions. According 
to Lewis’ account, conventions are solutions to recurring coordination prob-
lems: strategic interaction problems, that is, that are characterized by a coin-
cidence (not necessarily complete coincidence) of interests between the par-
ties, and by the availability of a plurality of equilibria, with respect to which 
the parties are relatively indifferent. Given a recurring coordination problem, a 
Lewis-convention is a regularity of conduct R such that each of the individuals 
involved prefers to conform to R, provided that the others conform to R (and, 
furthermore, each prefers that all the others comply, if the others – including 
himself – do, too), and this is common knowledge among them. For this rea-
son, all conform to R each time the opportunity presents itself: expectations 
of conformity bring about conformity, and, in turn, conformity brings about 
expectations of conformity.
Lewis' theory has been amply and fruitfully debated. An overall assessment 
of its strengths or weaknesses does not concern us here, however. The impor-
tant point for our purposes is, as we shall see in a moment, a different one (also 
identified by Lewis himself, and by some of those who discussed his ideas). 
The main idea of Lewis’ account of convention is captured by what I have 
elsewhere called the ‘dependency condition’:33 when there is a convention (in 
this specific sense), each of the individuals involved does A (an action of a cer-
tain kind) in S (a recurring situation) because the others do it, because the oth-
ers do it, because the others do it … (and so on). So, for example, a purely con-
ventional (in this sense) fact is the fact that a given social venue is trendy: each 
one goes there because she expects to meet the others there, because she expects 
each one of the others to expect to meet the others there; and each one of them, 
for this reason, goes there – thus confirming, the others’ expectations of meet-
ing the others there. In this sense, we go to this place because we go to this place 
because we go to this place ...
This is, however, only the pure case. Lewis’ approach can be used to mold a 
plurality of concepts of convention. The dependency clause (‘everyone does it 
because everyone else does’) can be understood in several different ways, thus 
generating a plurality of definitions that capture different phenomena.34
It is not necessary to develop this line of inquiry here. The relevant point 
for our present purposes is this. Definitions à la Lewis begin with the clause: ‘A 
certain kind of behavior (performing action A) in a recurring situation S – i.e., 
a regularity of conduct R – is a convention among the members of the social 
33 Celano 1995, 2013.
34 Celano 1995; for a detailed exploration of the main possibilities, see Celano 2013.
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group G if and only if ...’ (as I said, one can proceed in several ways, ending up 
with different concepts). The relevant problem here is the problem of the iden-
tity conditions of A and S (i.e., R); in particular, the conditions for the identifi-
cation, by the members of G, of A as a certain type of behavior (how can one say 
that a1 is a case, an instance, of A?), and S as the same situation that recurs (how 
can one say that s1 is a case of S?). In virtue of what, that is, do members of G 
recognize a1, a2, ... an as instances of the same type of behavior, and recognize s1, 
s2, ... sn as instances of the same type of situation? In short, how do they identify 
R, i.e. how do they determine what counts, now, as doing the same thing they 
did in the past?35
The existence of a Lewis-convention (and generally of a ‘convention’ in one 
of the senses defined following this approach) presupposes that the members of 
G have the ability of doing this. What does it consist of?
The problem is, at bottom, how it is possible to learn a convention (in par-
ticular, a Lewis-convention): “learning by experience”, through pattern recog-
nition.36 It is, generally, the problem of projection from past experience to the 
present case: what does it mean, here and now, to follow a precedent? What 
identifies a set of past cases as a set of precedents? In short: which precedent?37 
And here is Lewis’ response:
[O]f course, we could never be given exactly the same problem twice /.../ We cannot 
do exactly what we did before. Nothing we could do this time is exactly like what 
we did before – like it in every respect – because the situations are not exactly alike 
/.../ Guided by whatever analogy we notice, we tend to follow precedent /.../ There 
might be alternative analogies. If so, there is room for ambiguity about what would 
be following precedent and doing what we did before /.../ In fact, there are always in-
numerable alternative analogies. Were it not that we happen uniformly to notice some 
analogies and ignore others /.../ precedents would always be completely ambiguous and 
worthless.38
Lewis’ answer to the question of what justifies one in considering certain 
behaviors and not others as the proper continuation of R – i.e., what counts as 
‘following suit’ with R – is thus: as a matter of fact, we notice the same analo-
gies; and that is what fixes the identity of R, disambiguating past cases, and 
thus enabling us to proceed – to follow precedents. Certain options, and not 
35 The problem is formulated very clearly, concerning language, in Millikan 2008, who follows 
Lewis. See also Canale 2008 and the definition of the problem in Schauer 2008: 23–26. Schau-
er calls this difficulty “Wittgenstein’s problem” in the interpretation of custom. The reason 
for this reference to Wittgenstein will be clear in what follows. The fact that both Canale and 
Schauer discuss the problem when dealing with customs, and not conventions, is explained 
by the usual ambiguity (see above, 3) between the two notions. 
36 Sugden 1998: 379.
37 Sugden 1998: 396–397.
38 Lewis 1969: 37–38. Italics are mine.
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others, appear to us as ‘doing, now, what we have done in the past’. Sugden com-
ments: for Lewis, “all that matters /…/ is that people have concepts” – roughly 
the same ones for the members of a certain group – “of ‘natural’ or ‘obvious’ 
patterns, which allow the concept of ‘repeating successful actions’ to make sense 
to them”.39
This fact – the fortunate fact that, for the most part (there is no guarantee 
for this to happen, and there is no conceptual necessity involved), certain analo-
gies, and not others, appear obvious to us – is not, therefore, a mere regularity: 
it is also what fixes the identity of R, disambiguating past cases, and thus deter-
mining what is the correct way to behave.40 It is, in short, a normative fact.
This claim opens up a large space for the possibility of conventions – not, 
of course, Lewis-conventions (what we are talking about are precisely the facts 
that make the existence of a Lewis-convention possible), but pre-(Lewis-)con-
ventions.
To realize this, we only need to ask a simple question. What fixes the identity 
of R – disambiguating, thus, past cases –, it is said, is the fact that, for the most 
part, ‘we’ grasp the same analogies: certain analogies, and not others, appear to 
‘us’ as obvious. But who is the ‘we’? Who does the ‘us’ - or the first person plural 
- refer to?
Most likely, the fact that ‘we’ happen to notice the same analogies will de-
pend, in many cases, on traits characteristic of human beings in general: ‘we’, as 
members of the human species (features of the species’ cognitive apparatus). In 
other cases, however, we shall be dealing with local regularities: ‘we’, the mem-
bers of this or that tribe. (For this to happen, it suffices that the patterns that 
are recognized as obvious be roughly the same for all members of the group, 
not necessarily for all human beings.) And this is precisely the space that can 
be occupied by, more or less arbitrary, agreements (in the generic sense indi-
cated above, sect. 2), which are neither mere rules nor mere regularities, but 
which partake of both – they guide action, fixing the correct way to proceed: 
pre-conventions.
Lewis’ solution can be reformulated (Lewis himself does so) by resorting to 
the notion of salience.41 The identity of R is fixed by the fact that, luckily (if and 
when that happens; as it has been said, nothing guarantees that it will happen), 
39 Sugden 1998: 387.
40 It is worth emphasizing a point that, in light of what I have said so far, should be rather obvi-
ous. Here, the question is not whether we should or shouldn’t follow R, and why (this depends 
on whether the further conditions specified by a Lewis-type definition are met or not; here, 
we are assuming that they are). The question is, rather, what counts, each time, as complying 
with R: which action would be following the precedent (doing the same thing that we did in 
the past). 
41 See Schelling 1960 and Sugden 1998: 404.
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the same traits – roughly – appear salient to ‘us’ (who? See above); and this 
makes it the case that they are salient (they are salient precisely because they 
appear to be so to all of ‘us’) 42. In this way, it is the same analogies – between 
present and past cases – that strike us. And this allows ‘us’ to understand, here 
and now, what counts as the precedent to be followed.
The problem of learning and practicing (i.e., the activity of complying with) 
a Lewis-convention – determining what counts as doing the same thing in the 
same (the same type of) situation – is a special case of the ‘new’ problem (or 
‘riddle’) of induction.43 
The so-called ‘old’ problem of induction was raised by Hume: the possibility 
of inferring a prediction on the basis of past experience is based on the assump-
tion that, in the future, things will continue to go as they did in the past. What 
grounds this assumption? It cannot be an empirical thesis – this would simply 
beg the question – but neither can it be a logical truth, since it is, by definition, 
contingent.
The ‘new’ problem of induction is this: why the infinite traits of past experi-
ence that we could project onto future experience, we select some (e.g., ‘blue’, 
‘green’), while we exclude others without much thought (e.g., ‘bleen’)?44 What – 
if anything – justifies the fact that predictive inferences in which certain predi-
cates occur appear – more or less – plausible, while inferences in which other 
predicates occur are useless, even though the latter predicates are equally well 
formed, and the inferences in which they occur have the same form as the plau-
sible ones?
The answer to this question seems to be the following: it is nothing more 
than a brute matter of fact that certain traits are projectible while others are not; 
and, therefore, that – even if formally identical – certain inductive inferences 
are (more or less) good, while others are worthless.
This is a generalized version, covering the entire field of inductive inferences, 
of the answer that Lewis gives to the problem of the identity conditions of a 
conventional regularity of conduct.45 Some predicates appear salient to ‘us’, and 
therefore are projectible – that is, can legitimately be projected. “Projectibility is 
no more than a kind of salience”.46 What fixes the correct way to build ‘our’ vi-
sion of what will probably happen – the right way to proceed in drawing infer-
ences, based on past experience, about future experience (Lewis: following the 
42 If two individuals take as salient different traits, then neither of them is right (this simply fol-
lows from the definition of the relevant concept of salience). 
43 This is noticed and explained in Sugden 1998: 386–387.
44 Goodman 1983.
45 The order is not chronological. Chronologically, Goodman’s argument comes first. 
46 Sugden 1998: 404.
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precedent, ‘doing the same thing’) – is a set of matters of fact: ‘we’ project, or 
have projected, some traits and not others.
Two observations. (1) This argument, in the same way as Lewis' one, leaves 
room, opens up space, for the existence of pre-conventions. ‘We’ project some 
traits and not others; some traits and not others appear salient to ‘us’. Who are 
‘we’? Once again, which traits are salient – and, therefore, which inferences are 
legitimate – probably depends, in most cases, on features characteristic of hu-
man beings in general (‘we’ as members of the human species: features proper 
of the human species’ cognitive apparatus). In other cases, however, we shall be 
dealing with local regularities; with, specifically, more or less arbitrary agree-
ments among particular groups of people (‘we’ the members of this tribe): pre-
conventions.
(2) The fact that Lewis’ solution – which specifically regards regularities of 
conduct in recurrent strategic problems that have a certain structure (namely, 
coordination problems) – applies, in general, to the entire field of inductive in-
ferences, means that a very large portion of the predicates that we habitually use 
– i.e., a very significant part of our (‘our’ must always be understood in light of 
what has been said above) concepts – are subject to the regimen indicated by 
Lewis. That is, the identity conditions, and the conditions of use – of understand-
ing and application –, of a very large part of our concepts (those of the objects 
which are the subject matter of inductive inferences, and their properties), have 
the same structure as the identity conditions of a regularity of conduct which is a 
Lewis-convention. In short, our mastery of concepts, or at least a very large and 
significant proportion of it, has, according to the argument under examination, 
this structure. And that, prima facie, implies a remarkable expansion of the space 
that could be occupied by pre-conventions. Our conceptual competence – this is 
the hypothesis – is interwoven (also) with pre-conventions.
With this, however, we have now reached Wittgenstein.
6 ARGUMENTS (II): TO FOLLOW A RULE
Ludwig Wittgenstein famously asks what it is to follow a rule. The core of 
Wittgenstein's considerations on this issue appears in §§185–242 of Philosophical 
Investigations (1953). §§198–202 contain the climax of the argument.
These pages have been the subject of fierce exegetical controversy, and this 
is not the place to take an articulated stand on them.47 I will present the bare 
bones of what I believe to be Wittgenstein’s main conclusions relating to the 
matter at hand.
47 I follow J. McDowell’s interpretation of these passages of Wittgenstein’s (see especially Mc-
Dowell 1979: 60 ff., and 1984: 238–254).
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A preliminary point. When he speaks of ‘following a rule’, in these pages, 
Wittgenstein is actually talking about the use – the understanding and applica-
tion – of concepts generally. His arguments and conclusions concern the mas-
tery of concepts as such. His main problem is: what are the identity conditions 
of a concept? That is, under what conditions, when we say (or think) something 
about something, are we doing the same thing that we have done in the past – 
attributing, now, to this thing here, the same property that, in the past, we have 
attributed to other things?
A concept is, therefore, a rule: the problem is that of its correct application. 
(Or, if we got it right.) The correct use consists of the application of the same 
concept. The question is thus: under which conditions a set of cases of alleged 
application of the same concept can be said to correspond to a rule – that is, to 
be constituted by a set of cases which are, in fact, cases of correct application of 
that concept? Under what conditions a number of cases is a regularity i.e., the 
application of a rule? What fixes the identity of a – potentially infinite – series of 
cases of correct application of a concept?
And Wittgenstein’s answer is: a finite set of cases, which we were shown dur-
ing our training in the use of that concept – in the case of many concepts, when 
we were children, often in school – and the practice, “use” (Germ. Gebrauch), 
and “habit” (Germ. Gepflogenheit) (§§198, 199) which, living together, we have 
developed.
Now, it is essential to understand that this concept of ‘practice’, ‘use’ or ‘habit’, 
designates something very peculiar. Not a rule, of course. It designates a set of 
facts. But it designates a set of facts that fixes the identity of a rule. A set of facts, 
that is, which is a regularity – or a set of cases that corresponds to a rule (in 
the relevant sense here, stated above: a concept) – by virtue of itself: literally, a 
normative fact.
And this set of facts is produced in the course of the growth and upbring-
ing of a person, thanks to the fact that this person does many things together 
with other people. It is only by living together with others, and doing things 
with them, that this practice is formed – this is the only way we learn to fol-
low the rule ‘table’, ‘ice cream’, ‘walk’, ‘+ 2’, and so on and so forth. This is what 
Wittgenstein calls a “form of life”. (There is nothing idyllic in sharing a form of 
life; there is nothing edifying in the fact that the basis of our mastery of – the 
ability to properly use – concepts is the sharing of a form of life. A form of life 
may include, to be sure, repugnant or unpleasant things.) 
Despite the usual oracular style of the author, two quotations from On 
Certainty clarify what has been said so far:
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139. Not only rules, but also examples [Germ. Beispiele] are needed for establishing 
a practice [Germ. Praxis]. Our rules leave loop-holes [Germ. Hintertüren] open, and 
the practice has to speak for itself [Germ. für sich selbst sprechen].48
Here, the term ‘Praxis’ means what, above, we called a ‘practice’: a regularity 
that “speaks for itself ”, and on which depends the identity of the rule of which 
it is the application.
204. Giving grounds, however, justifying the evidence, comes to an end; – but the end 
is not certain propositions’ striking us immediately as true, i.e. it is not a kind of seeing 
on our part; it is our acting, which lies at the bottom of the language-game.49
Here, “language game” means, first of all, correctly (well enough, that is) us-
ing – understanding and applying – some concepts. 
Two predictable observations. (1) In this case as well (above, sect. 5), ‘we’ 
(‘our’, the first person plural) can have both universal and local scope. All, or 
almost everyone, of the members of the human species may share certain prac-
tices, and, thus, certain concepts. (It may be the case that the mastery of concepts 
is, or certain aspects of the mastery of concepts are, common to all, because, at 
some level of abstraction – as a function of common biological, psychological or 
ethological traits –, all human beings share a certain form of life.) Or it may be 
practices, and therefore concepts, of our tribe: the particular form of life, which 
is peculiar to a particular group of human beings, not shared by others. The dis-
tinction, which in the abstract is neat, can be, in particular cases, nuanced. 
(2) The argument opens up a large space for the possibility of pre-conven-
tions. If the ability humans have to identify, understand and apply concepts has 
this structure, then it is possible that what fixes the identity of some concepts – 
especially, local concepts – are arbitrary agreements (in the generic sense indi-
cated above, 2). The use of at least some concepts would be, in the sense which 
is relevant here, a ‘second nature’.50
Starting from Wittgenstein's reflections, quite a natural step is to hypoth-
esize that the concepts in our minds are schematic representations of individu-
als, which fix the paradigmatic traits of the thing (the thing which they are the 
concept of). These may be either fictitious individuals which display traits from 
different experiences (‘prototypes’), or real individuals, which constitute the 
paradigm of that thing for us (‘The setter that my aunt had is, for me, the dog’; 
‘exemplars’). This is the path that cognitive psychology has in fact taken.51 The 
48 Wittgenstein 1969 
49 Wittgenstein 1969.
50 On the mastery of concepts (the ability to use them correctly) as a ‘second nature’ see Mc-
Dowell 1994: 123–124.
51 Rosch 1973; 1975. Usually, people relate the theory of prototypes to Wittgenstein’s idea that 
the identity conditions and the conditions of the use of concepts, or at least of many concepts, 
are not sets of necessary and sufficient conditions, but depend on family resemblances. The 
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hypothesis is that it is these representations of individual instances that estab-
lish what counts as a correct application of the concept to new cases, following 
the analogies that appear salient to ‘us’ (above, sect. 5). When we think, we fol-
low precedents. The concept – the rule – is the ratio decidendi which is buried 
in past cases.
7 ARGUMENTS (III): THE BACKGROUND OF 
INTENTIONALITY
John Searle, following Wittgenstein,52 elaborates the ‘thesis of the 
Background’:
Intentional phenomena such as meanings, understandings, interpretations, beliefs, de-
sires, and experiences only function within a set of Background capacities that are not 
themselves intentional /.../ all representations, whether in language, thought, or experi-
ence, only succeeds in representing given a set of nonrepresentational capacities. 53
Or, in other terms, “[i]ntentional states function the way they do only given 
a presupposed set of Background capacities”, a “pre-intentional” Background,54 
which consists in a “set of capacities, abilities, tendencies, habits, dispositions, 
taken-for-granted presuppositions, and ‘know-how’ generally”.55 And the 
Background of intentionality is a territory, which is inhabited by, among other 
things, more or less arbitrary agreements (agreements – in the generic sense 
indicated above, sect. 2 – that are embodied), or pre-conventions:
Part of the Background is common to all cultures. For example, we all walk upright 
and eat by putting food in our mouths. Such universal phenomena I call the ‘deep 
Background,’ but many other Background presuppositions vary from culture to cul-
ture. For example, in my culture we eat pigs and cows but not worms and grasshop-
pers, and we eat at certain times of day and not others. On such matters cultures vary, 
and I call such features of the Background ‘local cultural practices.’56
convergence of this idea and the conclusions stemming from the eule-following arument are 
apparent. 
52 Searle 1992: 177.
53 Searle 1992: 175. Searle puts forward various arguments and considerations in favor of this 
claim (Searle 1983: ch. 5; 1992: ch. 8); here, I cannot discuss them. 
54 Searle 1999: 109.
55  Searle 1999: 107–108. On know-how in the Background, see Searle 1983: 143; 1992: 194; and 
2010: 155. Remember that ‘know-how’ is one of the territories that can host pre-conventions, 
that I have indicated above, at 4. 
56 Searle 1999: 109. See also Searle 1983: 143–4; and 1992: 194. In 2010: 155–160, Searle shows 
that within the Background (but the notion is used here in a wider sense than in the text) one 
can find elements, which may vary from one community to the other, that impose ‘norma-
tive constraints’, or that in general establish the way in which, in situations of a certain kind, 
people ‘should’ behave.
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In The Construction of Social Reality (1995) Searle provided an extensive dis-
cussion of the Background in relation to social rules (specifically, in relation to 
the problem of the nature and role of the rules which are constitutive of institu-
tional facts),57 the topic we are interested in here. Let me report the essentials of 
Searle’s account, with some comments.
Institutional facts and activities, Searle argues, depend for their existence 
and structure on sets of rules. But what is, in causal terms, the explanatory value 
of these rules? The problem arises out of three considerations.
(1) Normally, the creation of institutional facts is not the result of a set of 
conscious and deliberate, intentional acts, but occurs unintentionally.58 
(2) Even in cases in which the creation of institutional entities takes place, 
originally, by means of a complex of conscious, deliberate, intentional acts 
directed at this purpose (such as, e.g., in the case of the entity ‘President of 
the Italian Republic’), “the subsequent use of the entities in question need not 
contain the intentionality” by virtue of which they were originally created.59 
(3) The rules of an institution, for the most part, are not coded. Even when they 
are, “most of us are unaware of these codifications”. And finally, even if we are 
aware, “the codifications are not self-interpreting. We have to know how to in-
terpret or apply the codified rules”60 (this is a special case of the initial move in 
Wittgenstein’s argument, above, sect. 6: it cannot be a rule, of course, that satis-
fies this need, as this would produce an infinite regress).
These considerations allow Searle to conclude that, even though the logical 
structure of institutions is made out of (systems of) rules, those who participate 
in institutional activities, usually, do not follow these rules, either consciously 
or unconsciously.61 Rules, moreover, are not by themselves sufficient to deter-
mine what counts as participation in a given institutional activity.62
But, given this conclusion, what causal role can be attributed to the rules of 
an institution in the explanation of the actual behavior of the participants to 
the institutional activity? It is in order to answer this question that Searle intro-
duces, here, the notion of the Background.
According to Searle, as we know, intentional states only work against a 
Background of unintentional skills, dispositions, tendencies, whose work is a 
particular form of “neuropsychological causation”.63 This is true, Searle claims, 
57 For a critical presentation of Searle’s theory on institutional facts, see Celano 1997.
58 Searle 1995: 125–126.
59 Searle 1995: 126.
60 Searle 1995: 128, 142–143.
61 If we restrict our view to a naïve, pre-Wittgensteinian, picture of what it is to follow a rule, of 
course. 
62 Searle 1995: 127–128, 137.
63 Searle 1995: 129.
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also in the case of the participation in institutional activities. Participants de-
velop tendencies, dispositions, skills that, while not intentional, are “sensitive 
to specific structures of intentionality”; e.g., to systems of rules. In the case of 
institutional activities, these skills, dispositions, tendencies are “functionally 
equivalent” to the systems of constitutive rules of the institutions in question, 
while not containing any representation of them.64
This is the crucial step. Here, once again, entities intermediate between rules 
and regularities, embodied norms (or, if you will, the pineal gland), emerge. 
Tendencies, dispositions, skills that are in the Background are not intentional in 
character: they are bodily elements. At the same time, however, they are “sen-
sitive to /.../ structures of intentionality”, such as the constitutive rules of an 
institutional activity; they are “functionally equivalent” to them – which can 
only mean that they guide conduct, fixing the distinction between correct and 
incorrect behavior (i.e., they perform the role of norms).
Thus, Searle concludes,65 rather than saying, about the participants in an in-
stitutional activity, that e.g. ‘Tom acts so and so because he is following the rules 
of the institution’, we should usually say: ‘Tom behaves so and so because he has a 
structure that predisposes him to behave in this way’, and ‘Tom is predisposed to 
behave in this way because this is the way that conforms with the rules of the in-
stitution’ (the term in italics indicates that what is at issue, here, is not a mere de 
facto regularity: the relevant bodily structure is “functionally equivalent” to the 
rule: it fixes what counts as correct behavior). In an explanation of this kind, the 
idea of a Background of unintentional skills, tendencies, and dispositions, makes 
it possible to account, in causal terms, for the explanatory value of the rules of 
an institution, even when we assume that the participants in the institution are 
not following rules (either consciously, or unconsciously).66 The body takes over.
8 CONCLUSION: NATURE AND CONVENTION
I conclude with some general remarks. These will be somewhat imprecise 
and not very strict considerations, because I will make intuitive use of the con-
cept of nature, without specifying its content; and, of course, ‘nature’ is a term 
that has multiple meanings, and so we should distinguish.67 My only aim in 
64 Searle 1995: 141–142.
65 Searle 1995: 144.
66 In this paragraph too, ‘rule-following’ should be understood in a naïve, pre-Wittgensteinian, 
way. As we have seen, Searle’s argument is aimed precisely at demonstrating that rule-follow-
ing in fact requires, just as Wittgenstein himself claimed (supra, 6), ‘practice’, ‘habits’ (among 
these, possibly, the entities that I called ‘pre-conventions’); that is, it requires sharing a “form 
of life”. 
67 Aristotle, Metaphysica: V, 4.
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this section is to make explicit the connections between the ideas presented so 
far – in particular, the claim that there are pre-conventions – and some habitual 
moves in philosophical conversation.
The antithesis ‘nature’ v. ‘convention’ is one of the topoi of Western philoso-
phy, beginning with the Sophists. (The antithesis ‘nature’ v. ‘culture’ is its modern 
guise. The two antitheses do not overlap perfectly, but it is not important here to 
try and single out the differences.) Whether a certain thing – language, justice, 
the political community, logic or arithmetic, and so on – is what it is either ‘by 
nature’ (physei) or ‘by convention’ (nomo, kata syntheken) is one of the typical 
questions in Western philosophical inquiries. Conflicting traditions (e.g., at least 
according to some simplistic characterizations, natural law and legal positivism 
in legal theory, or the Aristotelian tradition and the modern one in political the-
ory) are identified according to which of the alternatives they favor.
The antithesis is, however, a bit too naïve. Not because there is nothing that 
is unmistakably so by nature (fire burns) or unmistakably so by convention (the 
fact that the yellow traffic light has a certain meaning; art. 138 of the Italian 
Constitution; the Treaty of Maastricht). But because the two terms are not mu-
tually exclusive: there are phenomena of great importance for human life which 
do not fall exclusively in one or the other category, while participating in both.
The entities I have called pre-conventions – embodied conventions that have 
become 'second nature' – are of this kind. If and when we glimpse at them, 
against the background of the things which we habitually direct our attention 
to, we land behind the scenes of the antithesis ‘nature’ v. ‘convention’ (or ‘nature’ 
v. ‘culture’).
I did not argue, and it does not seem likely at all to me, that pre-conventions 
are the only inhabitants of this territory. This is why I said that the arguments 
which I reviewed ‘leave room’, or ‘open up space’, for pre-conventions. The ge-
ography of this area, beyond the naive antithesis, is certainly very complex and 
varied. Pre-conventions are but a fragment of the Background. But it is here 
that we may find the conditions allowing us to frame one phenomenon as pure-
ly natural, or purely conventional (or cultural).
Translated from the Italian original 
by Marco Segatti.
—Acknowledgment.— I am grateful to Giusi Todaro for some profitable discussions on 
the themes of this paper. Thanks also to Marco Brigaglia and to two anonymous referees 
for Ragion Pratica for their suggestions and criticisms.
31Pre-conventions
(2016) 30
journal for constitutional theory and philosophy of law
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