Conventionalism Unchained. A defence of a realist account of legal duties against Dworkin?s criticisms

FEDERICO JOSÉ ARENA

México

Seminario; El convencionalismo desencadenado. Un enfoque realista del deber jurídico como respuesta a Dworkin; 2015

: Instituto de investigaciones filosóficas. Universidad Nacional Autónoma de México (UNAM)

After Dworkin?s attack against Hartian positivism different authors, including Hart himself, sought in conventions a way out to his objections. According to conventionalism?s main thesis legal duties are conventional. However, Dworkin remained unconvinced and argued that conventions would not do the trick. It seems to me that conventionalism has so far remained captive of Dworkin?s own premises. In this paper I argue that Dworkin?s argument is based on the premise that without explaining the existence of legal duties a theory would be unable to explain two essential features of law: (1) the fact that judges claim/assume/presuppose that there are legal duties and (2) the fact that judges disagree about the content of those duties. I also argue that this premise is wrong and that conventionalism has an alternative answer that involves endorsing some legal realist thesis and that is why I will call it ?sceptical conventionalism?.