ITS APPEAL

  • At heart of any positive conception of law (conventionalism or law as integrity) is its answer to q why past politics is decisive of present rights.
    • Conventionalism answer: past political decisions justify coercion because, and there ofre only when, they give fair warning by making the occasions of coercion depend on plain facts available toa ll rather than on fresh judgments of political morality, which different judges might make differently. Positive claim serves this ideal. Negative claim, no so obvious, but also serves this claim.   Danger that from point of view of popular ideal it is accepted that principles can be part of law for reasons not reflecting convention but just because they are morally appealing. ( Accident attorney abogados de accidentes )
  • Conventionalism protects authority of convention by insisting that conventiaonl practices establish the end as well as the beginning of the past’s power over the present.
  • Conventionalism’s negative claim also serves popular ideal in a diff way (if you add set of claim about how judges should decide hard cases when convention has run out).
    • Namely that judge in cases where no law, makes decisions with deference to institutions that conventionally make law and not so muc his personal or moral convicitons.
  • But above not as good as actual institution making decision, as finding an actual past decision because judge may be mistaken in his thoughts on what institution would have chosen.

LEGAL CONVENTIONS

  • Conventionalism is an interpretation of legal practice and tradition. So must begin by asking how far legal practice exhibits conventions. Even if find convention, appeal of conception still depends on political ideal of protected expectations.
  • Do we have conventions conventionalism needs? It iinsts that legal practice as whole, even if not always, is organized around important conventions. So defend this, must show that behavior of judges generally, even if not conventionalists, converges enough to allow us to find convention in that convergence
  • Seems easy at first sight: congress makes law, judges give weigh to precedent, easy. So crucial interpretation of voncetinalism seems to be reflected in ordinary experience. Lets take a closer look
    • If judge decides case – he may identify a convention but must still have a closer look and decide WHAT actually flows from it in any given case.
    • And judges very often disagree about correct answer. Shows us, more is needed about what convention is, how much and what kind of agreement is necessary in order that a particular proposition of law can be true in virtue of particular legal convention.
    • Philosophers usually have limited and precise conventions in mind when discussing them. Yet, two lawyers have different take on best interp. Of practices of leg or precedent because of their general political and moral convictions.
    • To take away ambiguity, make technical distinction:
      • Explicit extension: set of propositions which almost everyone said to be a party to convention accepts.
      • Implicit extension: set of propositions that follow from best or soundest interpretation of convention, whether or not these form part of explicit extension.
      • g: convention = both sides must be heard in a case. But disputed if this also means equal time. Thus, explicit extension only includes that all must be heard. Implicit = that they get equal time.

 

TWO KINDS OF CONVENTIONALISM.

  • Distinguish two kinds of conventionalism:
    • “Strict”: restricts the law of a community to explciti extension of its legal conventions (like legislation). (This would be very restricted conception of law)
    • “Soft” conventionalism: Insists that law of community includes everything within the implicit extension of these conventions.
  • If conventionalism is strict conventionalism, its positive claim offers no help to judges faced with problematical lawsuits. Soft part of convetionalism tells judges to interpret according to their own interp. Of legislation and precedent even if controversial.
  • So strict conventionalist must accept gap in his law, soft doesn’t. Gap, because calls for exercise of extrajudical discretion to make new law when statute vague. (because soft has implicit extension)
  • Soft conventionalist could even work if not even consensus that constitution is fundamental law. He could find even more abstract convention to find justification for coerecion.
  • So soft conventionalism not really conventionalism at all in spirit of tri-partite distinction…. but rather, its an abstract undeveloped form of law as integrity. —-
  • So if conventionalism is to provide distinct and muscular conception of law — must be strict. SO must test this now.