Conventions, Reasons and the Law

Abstract

According to Marmor, many critics thought that Hart had not given 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 himself, defended this conventionalism about the rules of recognition, albeit, on different grounds. His main aim in this essay is to clarify his position and provide some further arguments in support of the view that constitutive conventions are at the foundation of law. In particular, he tries to show, in the face of the criticisms that its 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 was 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 it would be wrong to describe as solutions to preexisting coordination problems. In his view, insisting on coordination belittles the talent and inventiveness of human beings. Our sophisticated social practices are not limited to solving the problems with which we find ourselves. People create practices that they consider valuable to undertake. And one of them is the legal practice.