Abstract
Dworkin famously argued that Hart’s practice theory is not able to give an account of legal duties and therefore that it is a bad theory of law. Conventions were then proposed as a substitute for the practice theory capable of showing the existence of legal duties. In this text Arena examines two different conventionalist strategies that have been proposed as answers to Dworkin’s criticisms—Marmor’s constitutive conventionalism and Postema’s constructive conventionalism. Arena claims that both proposals remain captive of Dworkin’s premises and that this has led them to overstate the cooperative dimension of legal practice. Dworkin’s argument is based on the premise that without explaining the existence of legal duties a theory would be unable to explain some essential features of law: judges’ statements of duty and disagreements. Arena argues against this premise by claiming, first, that judges’ statements of duty are just a projection of their attitudes both on the action considered mandatory or forbidden and on the conventional interpretative method they use to ground that statement. Second, that this projectivist perspective may account for judges’ talk in terms of truth value and for their disagreements. On the one hand, by following a quasi-realist schema, Arena claims that judges must earn their right to talk about truth and, on the other hand, he claims that judges’ disagreements are genuine disagreements in attitudes.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
- 2.
Following some common usage between legal philosophers, I will use “conventional” as conveying the meaning “determined by (or based on) a convention”. Besides, as I will only refer here to conventionalism in the legal domain I will use “conventionalism” for short, avoiding the longer “legal conventionalism”.
- 3.
Dworkin (1978), p. 48.
- 4.
Dworkin (1978), p. 49. He also says that “[e]very legal philosopher, with the exception of the most extreme of the American legal realists, has supposed that in at least some cases the judge has a duty to decide in a particular way, for the express reason that the law requires that decision” (Dworkin 1978, p. 49). Some pages earlier, Dworkin has derided legal realists by accusing them of witch hunting. See Dworkin (1978), pp. 15–16. As I argue below, legal realist’s main thesis may be recovered without implying, using Dworkin caricature, the charge of sorcery.
- 5.
- 6.
There is not much that can be said in advance about the specific sense in which a legal duty is supposed to exist, because the discussion is, precisely, about the conditions for the existence of a legal duty.
- 7.
“The fact that a practice […] exists justifies asserting a normative rule to that effect—not because the practice constitutes a rule which the normative judgment describes and endorses, but because the practice creates ways of giving offense and gives rise to expectations of the sort that are good grounds for asserting a duty […] or for asserting a normative rule […].” (Dworkin 1978, p. 57). The italics are mine.
- 8.
Also, if conventionalism were right, the existence of the duty would be just a matter of mere social facts, i.e., the existence of the uniform social practice. Plainly, the fact that this would render the conventionality thesis compatible with legal positivism has been one of the reasons why many philosophers—that take themselves to be positivists—have placed their trust in conventionalism. The compatibility with positivism has been one of the chains Dworkin has used against conventionalism. I will not indulge here in the analysis of the relationship between conventionalism and positivism.
- 9.
This is a bit stretchered. From a chronological point of view, in Taking Rights Seriously Dworkin attacks positivism and only in Law’s Empire conventionalism explicitly becomes his target.
- 10.
Dworkin (1978), pp. 49–50.
- 11.
Dworkin (1978), pp. 52–53.
- 12.
Dworkin (1978), p. 53.
- 13.
Dworkin (1978), pp. 53–54.
- 14.
Hart seems to have accepted this narrower scope for his theory in his manuscript notes posthumously published as “Postscript”. See Hart (1994), pp. 255–256.
- 15.
Dworkin (1978), p. 54.
- 16.
Dworkin (1986), p. 122.
- 17.
- 18.
Rebaptised as “The Snail Darter Case” in Dworkin (1986), pp. 20–23.
- 19.
Actually, there are several empirical disagreements between the majority and the minority that makes Dworkin reconstruction somehow tricky. For instance, regarding the impact the fact that Congress authorized and appropriated new funds for the construction of the dam after the snail darter was declared an endangered species may have on the counterfactual intentions of the Congress.
- 20.
I will avoid here the label “theoretical” that Dworkin uses in Law’s Empire for disagreements about grounds, because I think that the label carries some ambiguity. Below, after discussing conventionalism, I will introduce further precisions regarding the characterization of disagreements.
- 21.
Dworkin (1978), p. 55.
- 22.
Dworkin argues that the only way to understand the disagreement (and the fact that judges issue that kind of statements) is to opt for his interpretive theory, according to which the existence of a duty depends on the best moral/institutional argument on its behalf. That is, the duty exists when it can be defended on the basis of the best moral/institutional argument. See Dworkin (1986), pp. 238–258 for an outline of how this would work in actual legal practice.
- 23.
Dworkin (1978), p. 55.
- 24.
If the advocate of conventionalism wanted to argue that the cases of disagreement can be understood as cases were people having stated the existence of the duty for some cases urges to extend its application to the new cases, then it would be subject to the vegetarian objection. See Dworkin (1978), p. 55.
- 25.
Dworkin (1986), p. 117.
- 26.
Dworkin (1986), pp. 128–129.
- 27.
Dworkin (1986), p. 141.
- 28.
The error theory is local because its scope is limited to statements issued in cases of disagreement. A global error theory would be a theory that claims error regarding (almost) all statements of duty (see Mackie 1977, pp. 15–49). There is another difference between this local error theory that I have sketched and John Mackie’s well-known Error Theory in the moral sphere. The difference is that the falsity of statements of duty is contingent in the first case (disagreements are a contingent feature of legal practice) and necessary in the second case (Mackie claims that the moral world is necessarily non-existent because of the properties that moral facts are deemed to have).
- 29.
As Simon Blackburn claims: a language that contains an error would be affected “in something like the way in which phlogiston theory or witchcraft explanations are so tainted. If we come to believe in this error, one response is to abandon the whole thing: […], just as we have grown out of phlogiston and witchcraft theories” (Blackburn 2005, pp. 326–327).
- 30.
Conventionalism may try out here what Scott Shapiro has named “the repair argument”: “In systems of separated powers, where legislatures alone are authorized to make law and judges are required to apply it, it is dangerous for judges to admit that they are exercising discretion and attempting to repair the law. Courts preserve their legitimacy when they act as though there really is law ‘out there’ to discover rather than admitting that the law is sometimes indeterminate and that they are filling in the gaps” (Shapiro 2007, p. 39).
- 31.
In fact, in his manuscript notes posthumously published as “Postscript”, Hart, on the one hand, seems to explicitly recognize that his original theory embraced conventionalism (see for instance: “Certainly the rule of recognition is treated in my book as resting on a conventional form of judicial consensus” (Hart 1994, pp. 266–267). On the other hand, Hart points that it is a mistake to restate his theory as an “interpretative” or justifying theory. First, because an “interpretative” theory of positivism is not a “plain-facts theory” of positivism. Second, because “[w]hereas Dworkin interpretive theory in all its forms rests on the presupposition that the point or purpose of law and legal practice is to justify coercion, it certainty is not and never has been my view that law has this as its point or purpose. Like other forms of positivism my theory makes no claim to identify the point or purpose of law and legal practices as such” (Hart 1994, p. 248). Still, there is no complete agreement between Hart’s readers regarding his endorsement of conventionalism. For instance, Leslie Green and Julie Dickson claim that Hart’s theory in The Concept of Law was not conventionalist and that the conventionalist turn took place later on with the posthumous publication as “Postscript” of his manuscript notes. See Green (1999), pp. 37–41 and Dickson (2007), pp. 382–386. Dickson even doubts that the conventionalist turn actually took place, see Dickson (2007), p. 385 fn. 43.
- 32.
To my knowledge, the first time in which Coleman endorses this thesis is in Coleman (2001b), p. 117 (“I explicitly characterize the rule of recognition as a coordination convention”). In previous articles he mentions the possibility but does not explicitly embrace it; see Coleman (1982). However, he abandons this idea in Coleman (2001a), p. 374 and fn. 30.
- 33.
Marmor (2009).
- 34.
Postema (1982), pp. 165–203 and with substantial adjustments Postema (2011), pp. 483–545. Other versions of this kind of conventionalism have been advanced, with different nuances by Dimitrios Kyritsis (2008) and Govert den Hartogh (2002). However, Kyritsis’ and den Hartogh’s versions are somehow different from Postema’s position in as much as they defend the thesis according to which conventions have the capacity to justify by themselves the existence of duties in general. Postema purports only to show how legal conventions, given certain conditions, may generate duties. See Postema (2011), p. 497 for an assessment of the difference.
- 35.
Even if he is in an unstable middle way. On the one hand, he claims that a condition for the existence of a convention is that there are normative reasons to follow the regularity of behaviour and that “reasons for action are closely tied with the idea of value” (Marmor 2009, p. 5). This seems to imply that the existence of a convention necessarily implies that there are normative reasons to follow it. On the other hand, he claims that constitutive conventional duties are conditional. Indeed Marmor says that “conventional practices create reasons for action only if the relevant agent has a reason to participate in the practice to begin with. […] The obligation to play by the rules […] must come from moral and political considerations” (Marmor 2009, p. 168). More on this below.
- 36.
Marmor (2009), pp. 36–37.
- 37.
- 38.
See Searle (1969), pp. 33–36.
- 39.
“It is only when we have a whole structure of rule-governed activity, with some complexity and interconnections between the rules, that we can say that we have a social practice constituted by rules” (Marmor 2009, pp. 34–35).
- 40.
Marmor (2009), p. 161.
- 41.
As I have said at the beginning of this section, Marmor is in an unstable position. This instability may be a consequence of the following dilemma: either Marmor explains conventional duties by arguing that conventions are tied to values via reasons for action, but then he cannot account for silly or bad constitutive conventions; or he claims that the rules of the practice just prescribe mere modes of conduct within it and that the duty, if there is one, must come from moral considerations, but then he must isolate conventions from reasons and values. In a later work, Marmor tries to answer this objection and seems to opt for the second horn of the dilemma. Indeed, he claims that: “reasons for having a convention might be defeated, sometimes immediately and unquestionably so, by reasons not to have it. Unfortunately, the counter-reasons in play are not always recognized by those who convention it is. That is why bad conventions often exist and sometimes persist for a long time” (Marmor 2011, p. 497). But this answer falls short of the target: the fact that a reason for following a practice may be defeated by another does not prove that the practice is morally isolated, because moral reasons may be defeated.
- 42.
Vilajosana has defended a thesis according to which at the foundation of law there are conventions with a constitutive dimension (see Vilajosana Rubio 2010, pp. 471–501). Even if his proposal is close to Marmor’s, Vilajosana claims that coordination and constitutivity do not exclude each other. Therefore, according to Vilajosana there is no categorical dichotomy between coordination and constitutive conventions; it is just a distinction between several dimensions of conventionality (see Vilajosana Rubio 2010, p. 487 fn. 49). To my mind, since the positive conditions for a convention to have a constitutivity dimension are the same as the positive conditions for a convention to be constitutive, the objections apply also to Vilajosana’s proposal.
- 43.
It seems to me that Marmor is nudged to this conclusion because he bases his defense of constitutive conventions on the idea that even if some conventions are there to solve coordination problems, not all of them are. See Marmor (2014), pp. 84–85 where he concedes that even if constitutive conventions may solve social problems, these are not coordination problem in Lewis strict sense.
- 44.
Marmor (2009), pp. 53–54.
- 45.
Searle (1995), pp. 39–40.
- 46.
Searle (1995), pp. 24–25.
- 47.
Searle (1995), p. 39. And also: “Because physical features specified by the X term are insufficient by themselves to guarantee the fulfillment of the assigned function specified by the Y term, the new status and its attendant function have to be the sort of things that can be constituted by collective agreement or acceptance” (Searle 1995, p. 44).
- 48.
Marmor explicitly characterizes his theory as a theory of conventional (non-institutionally enacted) constitutive rules. See Marmor (2009), pp. 35–36.
- 49.
Postema (1982).
- 50.
Postema (2011), pp. 486–492.
- 51.
Lewis (1969). The label “coordination convention” is not Lewis’. Actually, Lewis attempted to answer Willard Quine’s objection against the possibility of a conventional foundation for logic and language. Lewis was interested in showing that one of the premises of Quine’s argument, i.e., that the existence of a convention depends on an agreement, is false. In fact, Lewis purported to provide an explanation of the general concept of convention, hoping to capture “our common, established concept of convention” (Lewis 1969, p. 3). After some criticism (see Jamieson 1975), pp. 73–81, Lewis only conceded that there may be derivative usages of “convention” that do not meet “the defining conditions” of his “central concept” (Lewis 1976, pp. 113–114).
- 52.
When an alternative emerges as a solution it is said to be salient. An alternative can be made salient in different ways, e.g., by being chosen by an authority, by an agreement, or just spontaneously or by chance. However, once the same solution starts to be followed, its salience comes from this fact, i.e., being a precedent, and not so much from how it originated. All that counts for its subsistence is its recurrent capacity to capture the attention of all the people involved in the coordination problem. See Lewis (1969), p. 38.
- 53.
“Citizens react to, and attempt to anticipate or predict, the law-applying activities of the judiciary as a hole. Thus, if the activity of law applying is to achieve the ends of the law in a reasonably efficient manner, it must be possible to view the activity of law applying as governed by some reasonably coherent pattern. This requires that judges seek to coordinate their law-applying activities in order to achieve something tolerably close to a norm of what I have called ‘institutional coherence’” (Postema 1982, p. 193).
- 54.
As, in the example mentioned by Postema, the fact that during his diary promenades Kant would pass at an exact hour every day at a lady’s window and the fact that on that basis the lady would form the expectation that he would pass every day at that hour, do not impose to Kant the duty to satisfy that expectation. See Postema (1982), p. 180.
- 55.
Postema (1982), p. 180.
- 56.
Postema (1982), p. 197.
- 57.
- 58.
- 59.
While a situation of the kind of the prisoner’s dilemma involves only two people, a problem of fair play involves a group of people. See Celano (2010a), p. 312.
- 60.
“[..F]ollowing Hume, we can identify coordination elements in other kinds of games in which conflict is more pronounced, not only so-called Battle of the Sexes games, but also iterated prisoner’s dilemma and hawk/dove games with uncertain termination points. We can refer to these as ‘cooperation problems,’” (Postema 2011, p. 489). Eerik Lagerspetz proposed a very similar strategy in Lagerspetz (1995).
- 61.
Postema (2011), p. 491.
- 62.
Postema (2011), p. 491.
- 63.
Postema (2011), p. 492.
- 64.
This broader conception of conventions has also an impact on Postema’s answer to Dworkin’s objection from disagreement. In his earlier work Postema argued that disagreements are just new coordination problems “within a (partially solved) coordination problem. […] This can be solved in essentially the same way as any other coordination problem is solved, namely, by exploiting the mutual expectations that already obtain in the situation” (Postema 1982, p. 178). However, this answer was insufficient because if disagreements are coordination problems, it must be accepted that prior to the decision there is no solution, so there is no previous convention. Instead, based on the idea of convention as “schemes of correlated actions”, Postema’s more recent answer is that “[c]onventions, on this view, are not static, fixed points, determined strictly by descriptions of the convergent behavior from which they emerge, but rather relatively stable nodes in a dynamic matrix, the full significance of which cannot be appreciated if removed from this matrix. It is that matrix, available to all and to which all contribute, that gives practical force to particular conventional arrangements and provides resources to enable participants to solve novel situations that arise in the course of the practice” (Postema 2011, p. 495). Where “novel situations” includes disagreements.
- 65.
Searle (2010), pp. 54–55.
- 66.
Lewis (1969), p. 35.
- 67.
Ross (1958), p. 147.
- 68.
Dworkin (1986), p. 138.
- 69.
Theories about “how far and in what way legislative intention is relevant in reading statutes” (Dworkin 1986, p. 137).
- 70.
To conceive of this activity as a game-like enterprise would be like conceiving of a game in which certain moves within it count in favour or against opposite ways of keeping score.
- 71.
Guastini (2011), p. 148.
- 72.
- 73.
I have mentioned Postema’s answer to the objection above. Just for completion, Marmor’s answer to the objection from disagreement is a reductio ad absurdum: “we can only make sense of such disagreements on the basis of the assumption that there are rules of recognition that constitutes, inter alia, the court system and the legal authority of judges” (Marmor 2009, p. 163). In other words, according to Marmor, the existence of disagreements between judges presupposes the existence of judges and the existence of judges presupposes the existence of constitutive conventions. Even if we concede this point to Marmor, it seems to me that it does not solve the problem. To answer Dworkin’s objection, we need to show that, notwithstanding the disagreement, there are constitutive conventions determining the content of the duty, not just who should identify it.
- 74.
In this case, given the claim that there are no legal duties, it would be a global error theory.
- 75.
- 76.
Blackburn (1998), p. 77. “We project an attitude or habit or other commitment which is not descriptive onto the world, when we speak and think as though there were a property of things which our sayings describe which we can reason about, know about, be wrong about, and so on” (Blackburn 1984, pp. 170–171).
- 77.
Blackburn (1998), pp. 77–83.
- 78.
- 79.
However, “[t]o hold a value, then, is typically to have a relative stable disposition to conduct practical life and practical discussion in a particular way: it is to be disposed or set in that way, and notably to be set against change in this respect. This way of being set is such as to align values and motivations” (Blackburn 1998, p. 67).
- 80.
“‘Avowal’ here means that we express this state, make it public, or communicate it” (Blackburn 1998, p. 68).
- 81.
Guastini (2011), pp. 138–161.
- 82.
As from now on I will refer only to interpretation in the legal context, I will use just ‘interpretation’ for short.
- 83.
For an argument in this sense see Chiassoni (2000), p. 94.
- 84.
“The simple rule of literal meaning is just one of several possibilities in which [interpretative] conventions could be framed; and, specially, the claim that within legal practice this simple rule is the only interpretative convention is clamorously denied by the facts” (Bayón Mohino 2002b, pp. 63–64). The translation is mine.
- 85.
- 86.
Chiassoni (2004), p. 103.
- 87.
This make interpretative methods closer to Marmor’s constitutive conventions. However, I do not need to argue for or against that here. Marmor himself has some doubts about that. See Marmor (2011), pp. 498–499.
- 88.
Of course, this is still a rough picture of interpretative statements.
- 89.
Blackburn (1984), p. 198. Oddly enough for my project, Blackburn seems explicitly to endorse something like cognitive conventionalism. He claims that the truth value of a legal statements is grounded in facts about human arrangements, actions, and decisions. So that a judge’s statement of duty is true if those groundings support the judgment that it is (Blackburn 1984, pp. 205–210). However, of my arguments against cognitive conventionalism are good, then they would apply to Blackburn’s reconstruction of legal truth.
- 90.
Blackburn (1984), pp. 197–202.
- 91.
Certainly I am not the first to defend a view of legal statements in an expressivits vein. Scandinavian Legal realist have long ago advanced this claim. I will end this text in debt with them and the reader because a precise assessment of the relationship between the proposal made here and Scandinavian legal realism remains a job for a further occasion. More recently, Kevin Toh has also defended an expressivist account of “committed legal statements”. At the beginning, Toh has defended it as an interpretation of Hart’s theory in The Concept of Law (Toh 2005), pp. 75–123; later, with additions and improvements, he has defended it as what he thinks is the correct view of legal statements (Toh 2011), pp. 107–137. Even if I have profited reading his work, there are differences between his view and mine. On the one hand, Toh does not introduce Blackburn’s quasi-realism and prefers Gibbards account (Gibbard 2003). On the other hand, Toh purports to combine expressivism with Hart’s idea of the rule of recognition, which I do not. This Hartian leg of Toh’s proposal has attracted criticism not only as an erroneous reading of Hart (see Swaminathan 2014), pp. 87–117 but also in virtue of its difficulties to cope with conventionalism’ problems: among others, disagreements and overestimation of cooperation. My view is closer, I think, to the proposal hinted by Shivprasad Swaminathan in Swaminathan (2016), pp. 231–266.
- 92.
“If this simple picture of when genuine disagreement is possible exhausts all possibilities, it must apply to legal concepts, including the concept of law” (Dworkin 1986, p. 45). And more explicitly in Dworkin (2017), p. 2110: “But making sense of our intellectual life requires that we have at least some way of distinguishing genuine from illusory disagreement”.
- 93.
“Unfortunately for these theories, this picture of what makes disagreement possible fits badly with the kind of disagreements lawyers actually have. [..M]uch disagreement in law is theoretical rather than empirical” (Dworkin 1986, p. 46).
- 94.
- 95.
So, as I have argued above, under the schema of cognitive conventionalism, judges claiming to disagree about the grounds of their statements of duty are either mistaken (“local Error theory”) or disingenuous (“the Repair argument”).
- 96.
See Ratti (2008), pp. 301–331 for a clear analysis of both decisions in this sense.
- 97.
See Canale y Tuzet (2014), pp. 196–197 for a reconstruction of the different interpretative arguments used by the majority in Riggs vs. Palmer. Actually, Canale and Tuzet show that the argument from principle plays just a subsidiary role in Earl’s argument.
- 98.
Disagreements in attitudes as genuine disagreements is a thesis of Charles Stevenson, which locus classicus is Stevenson (1945), pp. 1–19.
References
Arena FJ (2012) Antirrealismo moral vs. positivismo jurídico. Revista de Filosofía del derecho - Infojus 1(2):185–201
Arena FJ (2013) Una alternativa para el escepticismo interpretativo: convenciones y cuasirrealismo en la interpretación jurídica. Doxa 36:417–438
Bayón Mohino JC (2002a) El contenido mínimo del positivismo jurídico. In: Zapatero Gómez V (ed) Horizontes de la filosofía del derecho: homenaje a Luis García San Miguel, vol 2. Universidad de Alcalá de Henares, Alcalá de Henares, pp 33–54
Bayón Mohino JC (2002b) Derecho, convencionalismo y controversia. In: Navarro PE, Redondo MC (eds) La relevancia del derecho. Gedisa, Barcelona, pp 57–92
Blackburn S (1984) Spreading the word: groundings in the philosophy of language. Clarendon Press, Oxford
Blackburn S (1998) Ruling passions. Clarendon Press, Oxford
Blackburn S (2005) Quasi-realism no fictionalism. In: Kalderon ME (ed) Fictionalism in metaphysics. Clarendon Press, Oxford, pp 322–338
Canale D, Tuzet G (2014) Intenzioni del legislatore e ragionamento controfattuale. Analisi e diritto, 195–209.
Celano B (2005) Legal reasoning: three key issues, and what philosophy can(not) do about them. Analisi e diritto, 99–114
Celano B (2010a) [1997] Interazione strategica e convenzione. In: Celano B Fatti istituzionali, consuetudini, convenzioni. Aracne, Roma, pp 281–322
Celano B (2010b) [2003] La regola di riconoscimento è una convenzione?. In: Celano B Fatti istituzionali, consuetudini, convenzioni. Aracne, Roma, pp 323–341
Celano B (2017) Due problemi aperti della Teoria dell'interpretazione giuridica. Mucchi editore, Modena
Chiassoni P (2000) Interpretative games: statutory construction through Gricean eyes. Analisi e diritto 1999:79–99
Chiassoni P (2004) Codici interpretativi: Progetto di voce per un Vademecum giuridico. Analisi e diritto 2002–2003:55–124
Chiassoni P (2007) Tecnica dell'interpretazione giuridica. Il Mulino, Bologna
Coleman JL (1982) Negative and positive positivism. J Legal Stud 11(1):139–164
Coleman JL (2001a) The conventionality thesis. Philos Issues 11(1):354–387
Coleman JL (2001b) [1998] Incorporationism, conventionality and the practical difference thesis. In: Coleman JL (ed) Hart’s postscript. Essays on the postscript to “the concept of law”. Oxford University Press, Oxford, pp 99–148
den Hartogh G (2002) Mutual expectations. A conventionalist theory of law. Kluwer, La Haya
Dickson J (2007) Is the rule of recognition really a conventional rule? Oxf J Legal Stud 27(3):373–402
Dworkin R (1978) Taking rights seriously. Harvard University Press, Cambridge
Dworkin R (1986) Law’s empire. Belknap Press of Harvard University Press, Cambridge
Dworkin R (2011) Justice for hedgehogs. Belknap Press of Harvard University Press, Cambridge
Dworkin R (2017) [1994] Hart’s posthumous reply. Harv Law Rev 130(8):2096–2130
Gibbard A (2003) Thinking how to live. Harvard University Press, Cambridge
Green L (1999) Positivism and conventionalism. Can J Law Jurisprud 12(1):35–52
Guastini R (2011) Rule scepticism restated. In: Green L, Leiter B (eds) Oxford studies in philosophy of law, vol 1. Oxford University Press, Oxford, pp 138–161
Hart HLA (1994) [1961] The concept of law. In: Bulloch PA, Raz J (eds) 2nd edn. Clarendon Press, Oxford
Jamieson D (1975) David Lewis on convention. Can J Philos 5:73–81
Joyce R (2007) Moral Anti-realism. Stanford Encyclopedia of Philosophy. <URL: http://plato.stanford.edu/entries/moral-anti-realism/>, Accessed 26 Aug 2015
Kyritsis D (2008) What is good about legal conventionalism? Legal Theory 14(2):135–166
Lagerspetz E (1995) The opposite mirrors. An essay on the conventionalist theory of institutions. Kluwer, Dordrecht
Lewis D (1969) Convention. A philosophical study. Basil Blackwell, Oxford
Lewis D (1976) Convention: reply to Jamieson. Can J Philos 6(1):113–120
Mackie JL (1977) Ethics. Inventing right and wrong. Penguin, London
Marmor A (2009) Social conventions. From language to law. Princeton University Press, Princeton
Marmor A (2011) Conventions revisited: a reply to critics. Jurisprudence 2(2):493–506
Marmor A (2014) Convenciones, razones y derecho. In: Ramírez Ludeña L, Vilajosana Rubio JM (eds) Convencionalismo y derecho. Marcial Pons, Madrid, pp 67–88
Postema G (1982) Coordination and convention at the foundation of law. J Legal Stud 11(1):165–203
Postema G (2011) In: A treatise of legal philosophy and general jurisprudence, vol 11: Legal philosophy in the twentieth century: the common law world. Springer, Dordrecht
Ratti GB (2008) Los desacuerdos jurídicos en la jurisprudence anglosajona. Analisi e diritto, 301–331
Rawls J (1955) Two concepts of rules. Philos Rev 64(1):3–32
Raz J (1990) [1975] Practical reason and norms. Oxford University Press, Oxford
Ross A (1958) On law and justice. Stevens and Sons, London
Ross A (1968) Directives and norms. Routledge and Keagan Paul, London. Cited by the Italian Translation by M Jori. Direttive e norme. Giuffrè, Milán, 1978
Searle JR (1969) Speech acts. An essay in the philosophy of language. Cambridge University Press, London
Searle JR (1995) The construction of social reality. Free Press, New York
Searle JR (2010) Making the social world. The structure of human civilization. Oxford University Press, Oxford
Shapiro S (2007) The ‘Hart-Dworkin’ debate: a short guide for the perplexed. In: Ripstein A (ed) Ronald Dworkin. Cambridge University Press, Cambridge
Stevenson CL (1945) Ethics and language. Yale University Press, New Haven
Swaminathan S (2014) Toh’s Hartian project: expressivist turn, relativist returns. Aust J Legal Philos 39:87–117
Swaminathan S (2016) Projectivism and the metaethical foundation of the normativity of law. Jurisprudence 7(2):231–266
Toh K (2005) Hart’s expressivism and his benthamite project. Legal Theory 11:75–123
Toh K (2011) Legal judgments as plural acceptance of norms. In: Green L, Leiter B (eds) Oxford studies in philosophy of law. Oxford University Press, Oxford, pp 107–137
Vilajosana Rubio JM (2010) Una defensa del convencionalismo jurídico. Doxa 33:471–501
Acknowledgments
I would like to thank Pierluigi Chiassoni and Dimitrios Kyritsis for their insights and comments on previous drafts of this paper.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2019 Springer Nature Switzerland AG
About this chapter
Cite this chapter
Arena, F.J. (2019). Conventionalism Unchained and Sceptical. A Defence of a Quasi-Realist Account of Legal Statements Against Dworkin’s Criticisms. In: Ramírez-Ludeña, L., Vilajosana, J. (eds) Legal Conventionalism. Law and Philosophy Library, vol 126. Springer, Cham. https://doi.org/10.1007/978-3-030-03571-6_9
Download citation
DOI: https://doi.org/10.1007/978-3-030-03571-6_9
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-03570-9
Online ISBN: 978-3-030-03571-6
eBook Packages: Law and CriminologyLaw and Criminology (R0)