- What is a conception of law: general interp. Of legal practice as whole in its best light and why on that conception justification for coercion is there. So far looked at Q if it fits our practice, now look if justifies.
- If – contrary to Dwork. argument – conventionalism did fit our legal practices, would it provide sound justification? Earlier described an argument that it would – “the idea of protected expectation” ( that collective force be used only in accordance with standards chosen and rad through procedures the community as a whole knows will be used for that purpose. —
- Now must ask – is this ideal sound?
Fairness and Surprise
- Might be thought that this idea is democratic, but confuses two issues: Should people have final say how judge decide cases?
- Some say conventionalist system best because puts people on fair notice before depriving liberty. But even then, as seen in hard cases, there will be some surprise no matter what decision judges in those cases reach.
- But is reducing surprise so good? Suggestion that conventionalism reduces surprise must assume then not that surpise is unfair but it’s inefficient/imposes unnecessary risks/frightens people.
- But conventionalism not justifiable just because surprise not desirable.
- The political argument for conventionalism is that it protects people as much as possible from surprise. If our sole aim was to prevent surprise – that’d be unilateralism.
- In criminal law (US/UK), law is very close to unilateralism. In US even constitutional principle (non retrospectively). But private law legal practice not like that – judges very often decide for plaintiff EVEN when according to conventionalism the plaintiff had no legal right to win.
- Strict conventionalism seems more eligible that unilateralism precisely because it is bilateral. It insists that neither side has right to win. Conventionalist must show and distinguish situations where surprise must be tolerated and where avoided.
Convention and Coordination
- Point of conventionalism not just about protecting from surprise, but more complex goal, achieving social benefits of coordinated private and commercial activity.
- Need rules that protect harmony of working together. Convention establishes procedures where people an rely on state action. And where procedures have gaps. People know they have no right to rely on anything. — but if litigation arises, can rely that judges will try to get best rule going forward.
- This account fits in nicely with agreement by convention and agreement in conviction.
- Conventionalists defence of bilateralism: “Since it matters to some extent which rule is chosen, we do best to use convention only to protect decisions that some responsible political institution has actually taken on merits and to not include under umbrella decision by default, that is decision no no one has actually made. — If no decision made, court should be free to decide on merits, taking into account strategic consistency.”
Conventionalism and Pragmatism
- Defense of conventionalism we have now constructed has two parts:
- Wise adjudication consists in finding right balance between predictability and flexibility and,
- right balance is secured by judges respecting past explicit decisions of political institutions but not enforcing decisions by default in way unilateralism does. (more vulnerable than first point)
- Second general conception of law: Legal pragmatism: holds that people are never entitled to anything but the judicial decision that is, all things considered, best for the community as a whole, without regard to any past political decision. Radicalness of that mitigated by strategic value of coherence with past decisions. But, overall, judges should be ready to change rules in interest of community even if damage to authority of some political institutions.
- Legal pragmatist different os self conscious conventionalist (who sees someone like McLoughlin recover in virtue of past decisions)
- Conventionalist: Judges not see themselves free to change rules adopted pursuant to reigning legal conventions just because on balance a different rule would be more just or efficient.
- Pragmatist: No conventions of the (just above) sort recognised.
- Because society so complex: would be foolish to say that any theory a priori is the right one. If anything, better off with pragmatism because it is more adaptive (because if progression shows conventionalist better…it will move us in that direction).
- Not to advocate pragmatism, But if we choose conventionalism because it provides acceptable strategy for reaching the most efficient balance between certainty and flexibility, then we should choose pragmatism, which seems a far better strategy, instead.
- Summary: In early part of chapter, argued that conventionalism fits our legal practices badly. I asked if that conception would justify these practices, by providing an attractive picture of law’s point, if it fit well. We have now seen it would not, we have no reason to strain to make it fit. Failure of conventionalism as interpretation of our law is complete: it FAILS on both dimensions of interpretation.