Ruth G. Millikan's Conventionalism and Law
Legal Theory , Volume 28 , Issue 2 , June 2022 , pp. 146 - 178
33 Pages Posted: 16 Jun 2022
Date Written: June 2, 2022
Conventionalism once seemed an attractive way to justify the viability of the positiv- istic social thesis. Subsequent criticism, however, has significantly lessened its attrac- tiveness. This paper attempts to revive jurisprudential interest in conventionalism by claiming that positivists would profit more from the conventionalism of Ruth G. Millikan than that of David Lewis.
Three arguments are proffered to support this contention. First, Millikan’s conven- tionalism is not vulnerable to the major criticism leveled at conventionalism, viz its compliance-dependence (i.e., the main reason to follow a convention is that other social actors do so), as this is not its defining feature. Second, Millikanian convention- alism retains conventionalism’s ability to explain how law emerges from social prac- tices while avoiding the main disadvantage of Lewisian conventionalism, viz its inability to explain the normativity and contestability of law. Third, Millikan’s con- ventionalism can more effectively repel Dworkin’s and Greenberg’s assaults on legal positivism than its Lewisian counterpart.
Keywords: legal theory, philosophy of law, conventionalism, R.G. Millikan, D. Lewis, legal positivism
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