Unfolding legal conventionalism

FEDERICO JOSÉ ARENA

Milán

Seminario; Seminario de Departamento; 2011

Università Commerciale Luigi Bocconi

In this text the author affords a two-fold proposal regarding legal conventionalism about the identification of law. In the first place, he follows some philosophers in claiming that an agreement is not necessary for there to be a convention and he adds the thesis that a non-agreement based convention is necessary for there to be an agreement based convention. In the second place, he also follows some philosophers in claiming that there are at least two types of conventions: coordination conventions and constitutive conventions. The author advances the thesis according to which some of the objections usually addressed to legal conventionalism can be overcome if, instead of trying to reduce the fundamental legal convention to one of those singular types, we realize that in the judicial practice of identification of law we find both types of conventions: a coordination convention regarding the identification of normative provisions (or texts) and constitutive conventions in the domain of legal interpretation.