Custom and Convention at the Foundations of Law

Abstract

Abstract The creation of law cannot be authorized by law ‘all the way down’. Its ultimate foundations lie in a complex of acts and attitudes among its officials. These amount to customary norms. Some legal philosophers go further and argue that these customs are conventions in the sense that they solve complex problems of cooperation. This chapter explores the strengths and weakness of that view, concluding that it must be rejected. The basis of law lies in various customary norms that legal officials treat as obligatory. Conventions are never in themselves obligatory. But this is not because they fail to explain the ‘normativity of law’. Properly understood, there is no such puzzle to explain. Conventions are norms of the wrong structure. At base, law is as much about conflict as it is about consensus. Conventionalism is a misleadingly consensual view of law.