Tag Archives: Study


  • 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)
  • Difference:
    • 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.


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