‘The Positivist May Be Right’: Legal Conventionalism Revisited

Abstract

This paper revisits Ronald Dworkin’s distinction between concurrent and conventional morality. The first part of the paper argues that this distinction is best understood as being about normative, not motivating, reasons. Thus understood, the challenge that the distinction poses to Hart’s social rule theory is different to the one assumed in the relevant literature. It is that conventional practices generate genuine normative reasons (or obligations), but that Hart’s theory gives an inadequate account of these reasons. The second part of the paper argues that there is a significant shift in Dworkin’s approach to conventionalism, between his early and his later work. In Model of Rules II, Dworkin leaves it open that a revised version of conventionalism, free from the inadequacies of Hart’s account, can help vindicate a positivist account of legal obligation. In Law’s Empire however, positivism is equated with the version of conventionalism that was earlier found to be inadequate. The paper concludes by suggesting that Dworkin’s own theory of ‘law as integrity’, can be understood as conventionalist in the revised version that his earlier work leaves open.

Keywords: Conventionalism, Legal Obligation, Conventional Morality, Normative Reasons, Law As Integrity, Ronald Dworkin, H.L.A. Hart, Legal Positivism, Interpretivism