Abstract
Legal positivism’s multi-faceted insistence on the separability of law and morality includes an insistence on the thoroughly conventional status of legal norms as legal norms. Yet the positivist affirmation of the conventionality of law may initially seem at odds with the mind-independence of the existence and contents and implications of legal norms. Mind-independence, a central aspect of legal objectivity, has been seen by some theorists as incompatible with the mind-dependence of conventions. Such a perception of incompatibility has led some anti-positivist theorists to reject the notion of law’s conventionality, and has led some positivist theorists to query law’s mind-independence. What will be contended here is that both camps are mistaken.
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Notes
In the opening chapter of Kramer (2007), I explore six main dimensions of legal objectivity along with several ancillary dimensions.
Of course, the shared views to which I refer will often not be merely shared. Frequently, a key reason for the holding of those views by each participant is his knowledge that virtually every other participant holds them and expects him to hold them. This complicated interlocking of outlooks among the participants in a collaborative endeavor is not something on which I need to dwell here.
Ronald Dworkin, perhaps in a moment of polemical hyperbole, comes close to denying that the answer to the latter question is affirmative. See Dworkin (1986, pp. 136–139). For a critical rejoinder to Dworkin, see Kramer (1999, pp. 146–51). Whatever may be the merits of Dworkin’s position with specific reference to American constitutional law, it is wildly implausible as a general jurisprudential thesis applicable to all the main components of every legal system. At any rate, even if I were to accept Dworkin’s view that a legal system operates not through conventions but through arrays of independent moral convictions that converge with one another, I would not need to modify anything said here about the weak existential mind-independence of legal norms. Dworkin clearly accepts that law is only weakly mind-independent existentially. What would need to be modified is simply my suggestion that law’s weak existential mind-independence consists in its conventionality. A follower of Dworkin would insist that the weak existential mind-independence consists instead in law’s nature as a product of overlapping medleys of moral convictions harbored by officials and citizens.
Coleman has elaborated the content/application distinction in most of his writings on legal positivism. For one of his most recent discussions, see Coleman (2001, pp. 115–118). For my own reflections on the content/application distinction, influenced to some degree by Coleman's discussions, see the first four chapters—especially Chaps. 2 and 4—of Kramer (2004).
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Acknowledgements
I want to thank the audiences at two settings where earlier versions of this paper have been presented: the University of Stirling (Scotland) in July 2007, and the University of Catanzaro (Italy) in December 2007. In connection with the former occasion, I am especially grateful to Rowan Cruft, Antony Duff, Noam Gur, Sandra Marshall, and Massimo Renzo. (I owe particular thanks to Antony Duff and Sandra Marshall for their commentaries, and to Massimo Renzo for his prodigious organizational efforts.) In connection with my visit to Catanzaro, I am especially grateful to Paola Chiarella, Massimo La Torre, Andrea Porciello, and Salvatore Taranto. Very early versions of several of the paragraphs in this paper were published in Kramer (2006).
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Kramer, M.H. Is Law’s Conventionality Consistent with Law’s Objectivity?. Res Publica 14, 241–252 (2008). https://doi.org/10.1007/s11158-008-9069-8
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DOI: https://doi.org/10.1007/s11158-008-9069-8