The Role of Conventions in Law

Jurisprudence, Vol. 2, No. 2, pp. 451, 2011

Monash University Faculty of Law Legal Studies Research Paper No. 17

Posted: 7 Sep 2012 Last revised: 20 Aug 2013

See all articles by Dale Smith

Dale Smith

University of Melbourne - Law School

Date Written: 2011

Abstract

In this review of Andrei Marmor's book, Social Conventions: From Language to Law, I offer two objections to Marmor's claim that rules of recognition are best thought of as constitutive conventions. First, even if rules of recognition exist, it is doubtful whether all such rules satisfy Marmor's requirements for something to be a convention. Some rules of recognition may not be supported even by pro tanto reasons or, if they are, they may not be arbitrary in the way Marmor claims that conventions are. Second, even if rules of recognition exist and are conventional, it is doubtful whether they play the role in constituting legal practice that Marmor ascribes to them.

Keywords: conventions, Hart, Marmor, language, rules of recognition

JEL Classification: K00, K10, K19, K20, K29, K30, L39, K40, K49

Suggested Citation

Smith, Dale, The Role of Conventions in Law (2011). Jurisprudence, Vol. 2, No. 2, pp. 451, 2011, Monash University Faculty of Law Legal Studies Research Paper No. 17, Available at SSRN: https://ssrn.com/abstract=2142265

Dale Smith (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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