Legal Conventionalism

197 Pages·2019·2.167 MB·English

by  Lorena Ramírez-Ludeña, Josep M. Vilajosana

Law and Philosophy Library 126
Lorena Ramírez-Ludeña
Josep M. Vilajosana Editors
Legal
Conventionalism
Law and Philosophy Library
Volume 126
Series editors
Francisco J. Laporta, Autonomous University of Madrid, Spain
Frederick Schauer, University of Virginia, USA
Torben Spaak, Stockholm University, Sweden
Editorial Board
Aulis Aarnio, Secretary General of the Tampere Club, Finland
Humberto Ávila, University of São Paulo, Brazil
Zenon Bankowski, University of Edinburgh, UK
Paolo Comanducci, University of Genoa, Italy
Hugh Corder, University of Cape Town, South Africa
David Dyzenhaus, University of Toronto, Canada
Ernesto Garzón Valdés, Johannes Gutenberg Universitat, Germany
Riccaro Guastini, University of Genoa, Italy
Ho Hock Lai, National University of Singapore, Singapore
John Kleinig, City University of New York, USA
Claudio Michelon, University of Edinburgh, UK
Patricia Mindus, Uppsala University, Sweden
Yasutomo Morigiwa, Meiji University, Japan
Giovanni Battista Ratti, University of Genova, Italy; University of Girona, Spain
Wojchiech Sadurski, University of Sydney, Australia
Horacio Spector, University of San Diego, USA; Universidad Torcuato Di Tella,
Argentina
Robert S. Summers, Cornell University, USA
Michel Troper, Université de Paris Ouest - Nanterre, France
Carl Wellman, Washington University, USA
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Lorena Ramírez-Ludeña • Josep M. Vilajosana
Editors
Legal Conventionalism
Editors
Lorena Ramírez-Ludeña Josep M. Vilajosana
Pompeu Fabra University Pompeu Fabra University
Barcelona, Spain Barcelona, Spain
ISSN 1572-4395 ISSN 2215-0315 (electronic)
Law and Philosophy Library
ISBN 978-3-030-03570-9 ISBN 978-3-030-03571-6 (eBook)
https://doi.org/10.1007/978-3-030-03571-6
Library of Congress Control Number: 2018965182
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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Lorena Ramírez-Ludeña and Josep M. Vilajosana
Part I T he Notion of Convention
Pre-conventions. A Fragment of the Background . . . . . . . . . . . . . . . . . . . . 9
Bruno Celano
Re-examining Deep Conventions: Practical Reason and
Forward-Looking Agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Verónica Rodríguez-Blanco
Part II C onventions and the Rule of Recognition
Conventions, Reasons and the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Andrei Marmor
The Rule of Recognition as a Constitutive Convention . . . . . . . . . . . . . . . . 65
Jorge L. Rodríguez
Social Facts and Law: Why the Rule of Recognition is a Convention . . . . 89
Josep M. Vilajosana
Cooperative Conventions, Rules of Recognition and Institutional
Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Rodrigo E. Sánchez Brigido
On Identifying the Law and Its Supposed Conventional Foundations.
A Set-Theory Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Giovanni Battista Ratti
v
vi Contents
Part III Conventions and Legal Interpretation
Conventionalism Unchained and Sceptical. A Defence of a Quasi-Realist
Account of Legal Statements Against Dworkin’s Criticisms . . . . . . . . . . . 147
Federico José Arena
Conventionalism and the Causal Theory of Reference . . . . . . . . . . . . . . . . 179
Lorena Ramírez-Ludeña
The Interpretation of Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
Scott Shapiro
Introduction
Lorena Ramírez-Ludeña and Josep M. Vilajosana
The existence of a convention in a given community requires the presence of a
recurring behaviour, the belief that the existence of this behaviour is a reason to fol-
low it, and a set of expectations generated by the common knowledge of these cir-
cumstances. This characterization is already found in the seminal work of David
Lewis, and has been adopted, with some variations, as the starting point of the cur-
rent discussion on legal conventionalism.
The defence of the existence of a connection between legal conventionalism and
legal theory has generally been carried out within a positivistic framework. Legal
positivists attempt to explain the existence and content of legal systems by making
reference to complex social facts. According to them, such facts are dependent on
the acceptance of rules, which involve, among other considerations, the adoption of
certain conventions on how to recognize or identify those rules. In this respect, the
Hartian rule of recognition can be understood as a convention.
Taking the previous ideas into consideration, the present work will analyse some
of the problems in legal conventionalism, including defining the main features of
conventions, the possibility of understanding the rule of recognition as a conven-
tion, its role with respect to the existence of legal systems, its normative nature, and
the role that conventions play in legal interpretation. All these problems intersect
with each other throughout the following chapters.
The first part of this book contains the writings of Bruno Celano and Verónica
Rodríguez-Blanco, who deal more directly with the problems posed by the notion
of convention.
In his paper, Celano argues that there are conventions of a peculiar sort that are
neither norms nor regularities of behaviour, but both at once. After a brief analysis
of the meaning of “convention”, he provides examples of the kind of phenomena he
has in mind: bodily skills, know-how, taste and style, habitus (P. Bourdieu), and
L. Ramírez-Ludeña (*) · J. M. Vilajosana (*)
Law Department, Pompeu Fabra University, Barcelona, Spain
e-mail: [email protected]; [email protected]
© Springer Nature Switzerland AG 2019 1
L. Ramírez-Ludeña, J. M. Vilajosana (eds.), Legal Conventionalism, Law and
Philosophy Library 126, https://doi.org/10.1007/978-3-030-03571-6_1
2 L. Ramírez-Ludeña and J. M. Vilajosana
“disciplines” (M. Foucault). He then puts forth arguments supporting his claim: (a)
considerations about the identity conditions of precedents (D. Lewis) and the pro-
jectibility of predicates in inductive inference generally (N. Goodman); (b) thoughts
about rule-following (L. Wittgenstein); and (c) an examination of some of J. R.
Searle’s ideas about the “background” of intentionality. He concludes with some
remarks about the time-honoured antithesis nature v. convention.
According to Rodríguez-Blanco, there are many key distinctions that play an
important role in mapping out plausible ways of thinking about law construed as a
social practice. Among the varied dichotomies, the one that has probably been most
influential is the distinction between a description of an action and the normative
characterisation of an action. The former aims to explain an action without resorting
to the values or principles of the agent, while the latter aims to show how actions are
part of a normative landscape, where values, principles, and other normative stan-
dards play a key role. The focus might be on values, principles, and standards of the
agent or on values, principles, and standards that are objective. In previous work she
has defended the view that the primary conception of intentional action is normative
all the way through. There are no “brute” or “pure” facts about actions, and there-
fore actions cannot be grasped primarily by descriptors of the world either mentally,
physically, or of a similar sort. She has argued that in order to make intentional
actions intelligible, we need to resort to the values, principles, or good-making char-
acteristics that the agent aims to bring about in the world. We also need to under-
stand that the values, principles, or good-making characteristics of the action
provide a unity and intelligibility to the various bodily movements of the agent. This
is a complex and occasionally difficult understanding of agency but one that, in her
view, is sound. The core elements of this account of agency are that (a) there is a
parallel between practical reason or deliberative reasoning and intentional action;
(b) practical reasoning involves practical knowledge that is non-observational; (c)
the error of an action stems not from what the world looks like but from the perfor-
mance of the agent; and (d) intentional action is primarily from the first person or
deliberative point of view and therefore it is forward-looking. In her contribution to
this book, Rodríguez-Blanco focuses only on (d) and argues that this feature pro-
vides the key premise for the conclusion that a characterisation of actions in social
practices, including law, cannot be carried out on the basis of descriptions. She first
shows that (d) is true and she then describes the best account of actions in terms of
descriptions provided by legal philosophers in recent years: the idea that actions and
resulting social practices can correctly be grasped as “deep conventions”. Finally,
Rodríguez-Blanco shows that conventions sensu stricto and deep conventions
require (d) to be intelligible.
The second part of the book contains five texts that focus on analysing whether
the rule of recognition, first postulated by Hart, can be understood as a convention.
In particular, the first three texts are mainly concerned with whether the rule of rec-
ognition is a constitutive convention.
According to Marmor, many critics have held that Hart did not provide any good
reason to think that the rules of recognition are conventions, and in any case, no
conventional understanding of such rules is plausible. Others, including Marmor
Introduction 3
himself, defend the conventional character of those rules, albeit on different grounds.
His main aim in this essay is to clarify his position and provide further arguments in
support of the view that constitutive conventions are within the foundations of law.
In particular, he tries to show, in the face of criticism that his proposal has received
from Postema, that it is still necessary to postulate the constitutive character of the
rule of recognition. Indeed, Postema has argued that it is sufficient to extend the
notion of coordination employed by Lewis and himself at some earlier time (he now
prefers to speak in terms of “cooperation”) to argue that it is not necessary to take
Marmor’s step. In contrast, Marmor argues that there are innumerable conventional
practices, which would be wrongly described as solutions to pre-existing coordina-
tion problems. In his view, insisting on coordination belittles our talent and inven-
tiveness as human beings. Our sophisticated social practices are not limited to
solving the problems in which we find ourselves. People create practices and activi-
ties that they consider valuable, one of them being the law.
The second text of the second section, written by Rodríguez, is precisely intended
to criticize the position that Marmor has defended in previous works. Essentially,
his criticism is that a convention cannot be constitutive, and therefore the rule of
recognition cannot be a constitutive convention. According to Rodríguez, the con-
cept of convention employed by Marmor is too weak and would lead to considering
a rule to be conventional even though all the members of a community follow it
because they consider it to be correct. The rule may not be conventional, though
everyone is following it because others follow it. Moreover, it seems pointless to
speak of constitutional conventions inasmuch as, according to Rodríguez, the idea
of the arbitrary character of conventions is incompatible with the constitutive char-
acter of a rule. Consequently, Marmor’s view is affected by an internal inconsis-
tency because, by its own definitions, the constitutive character of the rule of
recognition would be incompatible with its conventional character.
The third text, by Vilajosana, is intended to show that the existence of law in a
given society requires a unitary practice of rule identification (a rule of recognition).
It is also argued that the best way of understanding this rule is to see it as a constitu-
tive convention, which allows for the autonomous identification of the law of a
particular community. According to Vilajosana, “just as the existence of money
requires the belief that it exists, the existence of a legal system depends ultimately
on a set of beliefs shared by the relevant persons”. After developing this position, a
series of recurrent criticisms against conventional conceptions is revisited with the
aim of rejecting them. These criticisms include that the rule of recognition as a con-
vention does not account for the normative nature of the convention, nor would it
account for the presence of principles in legal systems, nor the disagreements
between lawyers. Finally, the problem of the arbitrariness of the rule of recognition
and its alleged banality is addressed.
The second section ends with the contributions of Sánchez Brigido and Ratti.
According to Sánchez Brigido, after abandoning the idea that the rule of recognition
is a coordinative convention in Lewis’s sense, Postema offered a new, more sophis-
ticated version of conventionalism. According to this new version, the rule of recog-
nition should be understood not as a coordinative convention, but as a cooperative