Constitutive conventions in law and the problem of their primacy

Abstract

Marmor’s concept of a constitutive convention is predicated on a two-fold assumption of primacy. First, constitutive conventions allegedly create social practices in the absence of pre-existing coordination problems, and as such, have purposes autonomous from conventions that solve coordination problems. Contrary to Marmor, I argue that constitutive conventions are indispensable components of the conventional mechanisms that solve coordination problems. Marmor also argues that constitutive conventions must precede coordination conventions, since they create the institutional agents whose actions are to be coordinated. I argue that constitutive conventions do not necessarily precede coordination conventions, either logically or temporally. To support this claim I invoke the notion of “accommodation” as used in speech act theory: the powers of an authority can be constituted subsequent to their being exercised, i.e., they can be reversely accommodated. Finally, I argue that constitutive conventions in law are not autonomous conventions, but indispensable components of wider conventions that solve coordination problems. Constitutive conventions produce long-term mental representations of statuses and powers held by objects and persons, which can be combined to create other, multi-layered mental representations. These representations operate on the basis of Lewis’s scorekeeping model, and ultimately serve as tools for solving coordination problems.