Social conventions are those arbitrary rules and norms governing the countless behaviors all of us engage in every day without necessarily thinking about them, from shaking hands when greeting someone to driving on the right side of the road. In this book, Andrei Marmor offers a pathbreaking and comprehensive philosophical analysis of conventions and the roles they play in social life and practical reason, and in doing so challenges the dominant view of social conventions first laid out by David Lewis. (...) Marmor begins by giving a general account of the nature of conventions, explaining the differences between coordinative and constitutive conventions and between deep and surface conventions. He then applies this analysis to explain how conventions work in language, morality, and law. Marmor clearly demonstrates that many important semantic and pragmatic aspects of language assumed by many theorists to be conventional are in fact not, and that the role of conventions in the moral domain is surprisingly complex, playing mostly an auxiliary and supportive role. Importantly, he casts new light on the conventional foundations of law, arguing that the distinction between deep and surface conventions can be used to answer the prevalent objections to legal conventionalism. Social Conventions is a much-needed reappraisal of the nature of the rules that regulate virtually every aspect of human conduct. (shrink)
This book presents a comprehensive defence of legal positivism on the basis of a novel account of social conventions. Marmor argues that the law is founded on constitutive conventions, and that consequently moral values cannot determine what the law is.
The purpose of this essay is to explore some of the main pragmatic aspects of communication within the legal context. It will be argued that in some crucial respects, the pragmatics of legal language is unique, involving considerations that are not typically present in ordinary conversational contexts. In particular, certain normative considerations that are typically settled in a regular conversational context are unresolved and potentially contentious in the legal case. On the other hand, the essay also argues that a careful (...) distinction between various pragmatic aspects of language use enables us to offer some generalizations about types of pragmatic enrichment that could be taken to form, or not to form, part of what is actually determined by legal expressions. (shrink)
It has become increasingly popular to argue that legal positivism is actually a normative theory, and that it cannot be purely descriptive and morally neutral as H.L.A. Hart has suggested. This article purports to disprove this line of thought. It argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law. The article distinguishes between five possible views about the relations between normative claims and legal positivism, arguing that some of them are not (...) at odds with Hart’s thesis about the nature of jurisprudence, while the others are wrong, both as expositions of legal positivism or as critiques of it. Legal positivism does not necessarily purport to justify any aspect of its subject matter, nor is it committed to any particular moral or political evaluations. (shrink)
The distinction between a concept and its different conceptions plays a prominent role in debates about constitutional interpretation. Proponents of a dynamic reading of the Constitution-espousing interpretation of constitutional concepts according to their contemporary understandings typically rely on the idea that the Constitution entrenches only the general concepts it deploys, without authoritatively favoring any particular conception of them-specifically, without favoring the particular conception of the relevant concept that the framers of the Constitution may have had in mind. Originalists argue, to (...) the contrary, that fidelity to the Constitution requires an understanding of its provisions according to the particular conception of the abstract concepts prevalent at the time of enactment, and not those we may now favor. My main purpose in this essay is to put some pressure on the linguistic considerations that are presented in this debate, arguing that they are much more problematic than the proponents of both positions assume. I will try to show that the debate here is actually a moral-political one, mostly about the main rationale of a constitutional regime and the conditions of its legitimacy. It is, primarily, a debate about what constitutions are for, and what makes them legitimate. But I will only get to this moral issue at the end. The main part of the essay will strive to show that the semantic considerations employed in this debate are inconclusive; the way concepts are used in a given context depends on various pragmatic determinants, and those, in turn, depend on the nature of the conversation in question. The moral disagreement is, ultimately, about the kind of conversation that constitutional regimes are taken to establish. (shrink)
The normal way to establish that a person has authority over another requires a rule-governed institutional setting. To have authority is to have power, in the juridical sense of the term, and power can only be conferred by norms constituting it. Power-conferring norms are essentially institutional, and the obligation to comply with a legitimate authority's decree is, first and foremost, institutional in nature. The main argument presented in this essay is that an explanation of practical authorities is a two-stage affair: (...) the special, practical import of an authority can only be explained against the background of an institutional setting which constitutes the authority's power and the corresponding obligation to comply. However, this obligation is not an all things considered obligation, it is conditioned on reasons to participate in the relevant institution or practice. (shrink)
. The purpose of this essay is to argue that considerations of fairness play an essential role in the justification of democratic decision procedures. The first part argues that considerations of fairness form part of a practical authority's legitimacy, and that in the political context, those considerations of fairness entail a principle of equal distribution of political power. Subsequently, the article elaborates on the kind of equality which is required in democratic procedures, arguing that different principles of equality should apply (...) to the deliberation and the decision stages of democracy. Finally, the article concludes with a few sketchy remarks on the possible relations between considerations of fairness and soundness of democratic procedures. (shrink)
Following the pioneering work of David Lewis, many philosophers believe that the rationale of following a convention consists in the fact that conventions are solutions to recurrent coordination problems. Margaret Gilbert has criticised this view, offering an alternative account of the nature of conventions and their normative aspect. In this paper I argue that Gilbert's criticism of Lewis and her alternative suggestions rest on serious misunderstandings. As between these two opposed views, Lewis's is closer to the truth, but I argue (...) only with respect to one type of convention. There is another, important type of conventions, whose normativity does not consist in the solution of coordination problems. The validity of conventions constituting (what I call) autonomous practices can only be derived from the values inherent in the practices they constitute and those values cannot be specified independently of the conventions themselves. (shrink)
In Philosophy of Law, Andrei Marmor provides a comprehensive analysis of contemporary debates about the fundamental nature of law--an issue that has been at the heart of legal philosophy for centuries. What the law is seems to be a matter of fact, but this fact has normative significance: it tells people what they ought to do. Is the normative content of a law entirely determined by the facts that make it a law? Are there some normative moral constraints on what (...) the law can be? And can we fully characterize and define the law without assuming a moral conception about what the law ought to be? Finally, is the philosophy of law about describing what law is, or prescribing what it should be?Marmor argues that the myriad questions raised by the factual and normative features of law actually depend on the possibility of reduction--whether the legal domain can be explained in terms of something else, more foundational in nature. In addition to exploring the major issues in contemporary legal thought, Philosophy of Law provides a critical analysis of the people and ideas that have dominated the field in past centuries. It will be essential reading for anyone curious about the nature of law. (shrink)
The book builds on recent work in pragmatics and speech-act theory to explain how, and to what extent, legal content is determined by linguistic considerations. At the same time, the analysis shows that some of the unique features of communication in the legal domain - in particular, its strategic nature - can be employed to put pressure on certain assumptions in philosophy of language. This enables a more nuanced picture of how semantic and pragmatic determinants of communication work in complex (...) and large-scale systems such as law. (shrink)
Law in the Age of Pluralism contains a collection of essays on the intersection of legal and political philosophy. Written within the analytical tradition in jurisprudence, the collection covers a wide range of topics, such as the nature of law and legal theory, the rule of law, the values of democracy and constitutionalism, moral aspects of legal interpretation, the nature of rights, economic equality, and more. The essays in this volume explore issues where law, morality and politics meet, and discuss (...) some of the key challenges facing liberal democracies. Marmor posits that a liberal state must first and foremost respect people's personal autonomy and their differing, though reasonable, conceptions of the good and the just. This basic respect for pluralism is shown to entail a rather skeptical attitude towards grand theories of law and state, such as contemporary constitutionalism or Dworkin's conception of 'law as integrity'. The values of pluralism and respect for autonomy, however, are also employed to justify some of the main aspects of a liberal state, such as the value of democracy, the rule of law, and certain conceptions of equality. The essays are organized in three groups: the first considers the rule of law, democracy and constitutionalism. The second group consists of several essays on the nature of law, legal theory, and their relations to morality. Finally, the collection concludes with essays on the nature of rights, the limits of rights discourse, and the value of economic equality. (shrink)
This paper argues that constitutionalism raises some serious concerns of moral legitimacy. Following a preliminary outline of the main features of constitutionalism, the paper presents some of the main moral concerns about the legitimacy of constitutions. It then considers in detail a number of arguments which purport to answer those concerns, arguing that they all fail to meet the challenge. The paper concludes with a brief outline of some of the moral implications of this failure and some suggestions for reform.
Machine generated contents note: -- 1. The Value of Vagueness, Timothy Endicott -- 2. Vagueness and the Guidance of Action, Jeremy Waldron -- 3. What Vagueness and Inconsistency tell us about Interpretation, Scott Soames -- 4. Textualism and the Discovery of Rights, John Perry -- 5. The Intentionalism of Textualism, Stephen Neale -- 6. Can the Law Imply More than It Says? On some pragmatic aspects of Strategic Speech, Andrei Marmor -- 7. Modeling Legal Rules, Richard Holton -- 8. Trying (...) to Kill the Dead: De Dicto and De Re Intention in Attempted Crimes, Gideon Yaffe -- 9. Philosophy of Language and the Law of Contracts, Gideon Rosen -- 10. Language and Law: Who's in Charge?, Mark Greenberg -- 11. Meaning and Impact, Nicos Stavropoulos. (shrink)
There are two questions I would like to address in this article. The first and main question is whether there are rules of recognition, along the lines suggested by H.L.A. Hart. The second question concerns the age-old issue of the autonomy of law. One of the main purposes of this article is to show how these two issues are closely related. The concept of a social convention is the thread holding these two points tightly knit in one coil. Basically, I (...) will argue that a novel account of social conventions can be employed to reestablish Hart's thesis about the rules of recognition, and that this same account shows why, and to what extent, law is partly an autonomous practice. (shrink)
Interest in interpretation has emerged in recent years as one of the main intellectual paradigms of legal scholarship. This collection of new essays in law and interpretation provides the reader with an overview of this important topic, written by some of the most distinguished scholars in the field. The book begins with interpretation as a general method of legal theorizing, and thus provides critical assessment of the recent "interpretative turn" in jurisprudence. Further chapters include essays on the nature of interpretation, (...) its objectivity, the possible determinacy of legal standards, and their nature. Concluding with a series of articles on the role of legislative intent in the interpretation of statutes, this work offers new and refreshing insights into this old controversy. (shrink)
In this short essay I argue that the main insight of Murphy and Nagel’s book, The Myth of Ownership, that people have no right to their pre-tax income, is not supported by their claim that the right to private property is not a natural right. The non-naturalness of the right to private property, I argue, is irrelevant to their moral argument. The plausibility of their moral conclusion derives from the thesis that people have a right to the fruits of their (...) labor, maintaining, however, that there is no possible conception, morally speaking, of what the fruits of one’s labor are, independent of a system of legal and social norms that constitute the terms of fair bargaining, pricing, etc. People can only have a right to a fair assessment of the added value of their labor, and the latter cannot make any sense independent of the entire system of norms prevailing in the relevant society. I argue that this last conclusion is not affected by the nature of the right to private property. (shrink)
This paper argues that the literal meaning of words in a natural language is less conventional than usually assumed. Conventionality is defined in terms that are relative to reasons; norms that are determined by reasons are not conventions. The paper argues that in most cases, the literal meaning of words—as it applies to their definite extension—is not conventional. Conventional variations of meaning are typically present in borderline cases, of what I call the extension-range of literal meaning. Finally, some putative and (...) one or two genuine exceptions are discussed. (shrink)
In this article I want to support a certain conception of legal authority. The question I want to address is this: Is it possible to attribute legal authority to a given norm if its authority does not derive from the authority of someone who has issued that norm? Basically, I will try to defend here a negative answer to this question, espousing a personal conception of authority.
The essay explores the question of whether people can have a right to common goods, such as the flourishing of their culture or national heritage. It first explains the concept of a common good and its distinction from other similar concepts, such as collective and public goods. Second, it argues that individuals ought not to have a right to common goods, unless a particular distributive principle applies to the good in question, and then the individual's right is the right to (...) a certain share in that common good. Finally, the essay explores the question of how this analysis applies to group-rights, with respect to other groups and to members of the group itself. (shrink)
The normal way to establish that a person has authority over another requires a rulegoverned institutional setting. To have authority is to have power, in the juridical sense of the term, and power can only be conferred by norms constituting it. Power conferring norms are essentially institutional, and the obligation to comply with a legitimate authority’s decree is, first and foremost, institutional in nature. Thus, the main argument presented in this essay is that an explanation of practical authorities is a (...) two-stage affair: the special, practical import of an authority can only be explained on the background of an institutional setting which constitutes the authority’s power and the corresponding obligation to comply. However, this obligation is not an all things considered obligation, it is conditioned on reasons to participate in the relevant institution or practice. A complete account of the reasons to regard authoritative decisions as binding must also rely on the reasons for having the institution or practice in question and the kind of authoritative structure that it has. This argument is presented here on the background of a critique of two alternative accounts, Joseph Raz’s service conception of authority and Stephen Darwall’s second personal standpoint account. (shrink)