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Why Conventionalism does not Collapse into Pragmatism

Published online by Cambridge University Press:  16 January 2009

N. E. Simmonds
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In this paper I propose to defend legal conventionalism against the attack mounted on it in Chapter 4 of Ronald Dworkin's book Law's Empire. I do not propose to defend legal conventionalism against other arguments which might conceivably be deployed against it. Nor do I propose to say anything of great substance about the positive merits of the position.

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The Cambridge Law Journal , Volume 49 , Issue 1 , March 1990, pp. 63 - 79
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Copyright © Cambridge Law Journal and Contributors 1990

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References

1 London: Fontana 1986; also Harvard University Press 1986.

2 The same passage appears on the cover of the paperback edition.

3 The substantive point that I am making does not depend on whether Dworkin was the author of the relevant passage.

4 Op. cit. p. 117.

5 Op. cit. p. 433 n. 13.

6 See Simmonds, , “Imperial Visions and Mundane Practices” [1987] C. L. J. 465Google Scholar.

7 See Rawls, J., A Theory of Justice (Oxford 1971), p. 5Google Scholar.

8 Dworkin, op. cit. p. 93.

9 Loc. cit.

10 Loc. cit.

11 Loc. at.

12 Op. tit. p. 117.

13 Loc. cit.

14 I refer here to retribution in general aim, not retribution in distribution. See Hart, H. L. A., Punishment and Responsibility (Oxford 1968), Chap. 1Google Scholar.

15 See Simmonds, op. cit. n. 6 above.

16 Taking Rights Seriously (London: Duckworth 1977), p. 37.

17 Law's Empire, pp. 139–150.

18 See Roberts, Simon, Order and Dispute (1979)Google Scholar.

19 Hart, H. L. A., The Concept of Law (Oxford 1961), pp. 89–96, 189–195Google Scholar.

20 See Fuller, Lon, The Morality of Law (yale 1969)Google Scholar.

21 I am assuming that a pragmatist judiciary could not succeed in concealing the nature of their activity.

22 The problem is aggravated by the fact that it is not the actual level of enforcement that matters, so much as the publicly perceived level.' Even if there was only 20 per cent, official deviance from the rules, and the officials knew this, it would be much harder for them to know what the public perception of official deviance was. The 20 per cent, of deviant cases might be the very ones to attract public attention.

23 [1895] 1 Ch. 480,

24 Hayek, F. A., Law, Legislation and Liberty vol. I (London: Routledge and Kegan Paul 1973), Ch. 5Google Scholar.

25 Law's Empire pp. 159–164.

26 The Works of Jeremy Benlham, edited by Bowring, J. (Edinburgh 1843) vol. I, p. 323Google Scholar.

27 Law's Empire, p. 135.

28 Op. at. pp. 135–139.

29 Earlier versions of this paper were delivered to seminars at the Department of Philosophy, University of East AngUa, and the Centre for the Criminological, Social and Philosophical Study of Law, University of Edinburgh. I am indebted to participants in both seminars.