Convention and Consistency

  • Case against conventionalism: Strict conventionalism fails (esp w emphasis on neg part). Fails for paradoxical reason: our judges actually pay more attention to so called conventional sources of law like statutes and precedents than conventionalism allows them to do!
  • If in Elmer’s case had been strict conventionalists, would have decided case in two stages:
    • inspected judicial practice to see if all judges agreed that words of stat must be given their “literal” meaning OR
    • Not be given literal meaning.
  • Well, since ob didn’t agree, turned to how statute should be read, and that make sense only on assumption that the law judges have an obligation o enforce depends on correct reading even when it is controversial – this is exactly the assumption conventionalism denies.
    • Also in snail darter. Disagreed whether they were obligated by correct theory of legislation o enforce most literal or most sensible reading in absence of evidence what congress intended. BUT, for strict conventionalist, law has run out here.
  • So a self conscious conventionalist would maybe think about past to make new law more consistent with old. Two kinds of consistency a law maker may seek:
    • Consistency in strategy: worry that new rules fit with old, but doesn’t require judge to probe past to find best interpretation of statute.
    • Consistency in principle: Requires various standards governing state’s use of coercion against its citizens be consistent in the sense that they express a single and comprehensive vision of justice. So would look for consistency in principle in cases before and after McLoughlin.
  • Conventionalism differs from law as integrity precisely because conventionalism rejects consistency in principle as source of legal rights.
  • Are interest in conventionalism lies in its negative claim that convention exhausts intrinsic normative power of past decisions. — If you think consistency in principle (not merely strategy) must be at heart of adjudication has rejected conventionalism.


Convention and Consensus

  • Argument above: So this deep concern judges show about “correct” reading of statutes and precedents in hard cases is actually embarrassment to conventionalism.
  • Dwork offers another one now: challenge the assumption that whatever consensus lawyers have achieved about legislation and precedent is properly seen as matter of convention. Is it? Must look over some stretch of time to see.
    • Assume every lawyer in UK accepts that statue is duly enacted by Plt then no real doubt what it means. Two explanations for this. True by convention (then substantive attack out of order), or independent conviction (substantive attack is threat to proposition).
    • Which is true? Not obvious from reading random cases. Must look at pattern over time. And have changed over time. How can we explain sea change in dominant theory of legislation?
    • Answer: Practice changed in response to arguments made in context of adjudication, as arguments about what judges should do in particular cases, not in special mini-constitutional conventions. Trickled through, law school papers, dissenting judgments.
    • Yet, though rules of games change over time, once rule settled and accepted as convention. Crisp distinction between arguments ABOUT and arguments WITHIN rules. But Judges like to change settled practice in mid-game, sometimes on encouragement from a certain council.
    • Not prove that nothing is settled in UK or US law as matter of genuine convention, like authority of constitution. Can draw two conclusions:
      • Nothing need be settled as matter of convention in order for legal system not only to exist but to flourish. Interpretive attitude needs Paradigms, but these need not be matters of convention. Sufficient if level of agreement in conviction high enough at any given time to allow debate over fundamental practices like legislation and precedent to proved in the way described in Ch 2, building boat planks one by one.
      • Conventionalism not good interp. To describe process by which legal culture shifts over time. Conventionalism fails here as it fails in cross section, in explaining how particular hard cases like our samples are debated and decided.
    • http://www.svtuition.org/2012/07/convention-of-consistency.html