Constitutive Conventions in Law and the Problem of Their Primacy
40 Pages Posted: 18 Nov 2020
Date Written: November 4, 2020
The first part of this paper is a critique of Marmor’s concept of a constitutive convention, which is based on a two-fold assumption of primacy: (i) that constitutive conventions create social practices in the absence of pre-existing coordinative problems; and (ii) that constitutive conventions must necessarily precede coordinative conventions, as the former create institutional agents whose actions are coordinated by the latter.
I argue against (i), contending instead that constitutive rules are indispensable components of the conventions adopted to solve coordination problems, and as such, also serve as solutions to coordination problems. I substantiate this claim by deconstructing Marmor’s example of chess as an archetypical practice based on constitutive conventions which do not solve pre-existing coordination problems. I also argue against (ii) and propose that the concept of “accommodation” be used to solve the problem of primacy. This is a redressive action that involves “context-repair”. Constituting an individual’s power can be subsequent to exercising that power, i.e. it can be reversely accommodated.
In the second part of the paper, I apply Millikan’s evolutionary model of conventions, and propose to treat constitutive conventions as those used in open coordinations (when coordination is preceded by communication), not in blind coordinations (when communication is hindered or impossible, as in Lewis’s examples of traffic or a broken telephone connection). I argue that constitutive conventions trigger mental representations of statuses and powers of objects and persons. These representations operate on the basis of Lewis’s scorekeeping model, and ultimately serve as tools for solving coordination problems.
Keywords: Conventions, constitutive conventions, A. Marmor, R. G. Millikan, D. Lewis
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