Rules, conventionalism and normativity

some remarks starting from Hart

Aldo Schiavello

pp. 215-227

in: Michał Araszkiewicz, Paweł Banaś, Tomasz Gizbert-Studnicki, Krzysztof Płeszka (eds), Problems of normativity, rules and rule-following, Berlin, Springer, 2015

Abstract

The paper deals with the "conventionalist turn" in legal positivism in relation to the matter of the duty to obey the law and legal normativity. In this respect, conventionalist legal positivism is worth considering (a) because it offers an explanation of legal normativity partly different vis-à-vis previous ones and (b) because it tries to preserve the autonomy of legal obligation from moral obligation and coercion, respectively. Here I will only focus on legal conventionalism as sketched out by Hart in the Postscript. Indeed, Hart's conventionalism comes up against problems which to some extent also affect other distinguished versions of legal conventionalism like, for example, those worked out by Jules Coleman, Andrei Marmor and Scott Shapiro. Other 'stronger" versions of legal conventionalism like, for example, those advanced by Chaim Gans and Gerald Postema, succeed in avoiding some of the traps into which the previous ones fall but, paraphrasing Hart, the outcome is distortion as the price of internal coherence. To sum up, legal conventionalism follows two pathways, both of them in the end unsatisfactory. The first pathway—opened up by Hart—leads to a "weak" version of conventionalism. This approach fails insofar as it does not succeed in preserving the autonomy of legal obligation from moral. The second pathway—followed in different ways by Gans and Postema—does not soften conventionalism and so it achieves the outcome of designing a coherent conventionalist model of legal normativity but at the price of distorting reality.