Legal Conventionalism and the Hermeneutic Constraint

FEDERICO JOSÉ ARENA

Edimburgo

Workshop; Legal Theory Spring Workshops; 2014

University of Edinburgh

According to legal conventionalism the correctness of interpretative statements can be assessed on the basis of interpretative conventions. The author analyses one of the difficulties that such a view has to overcome due to the fact that, first, judges claim that the result of the interpretation (i.e., the interpretative statement) is mandatory and, second, on the standard deflationist view interpretative conventions are not a sufficient basis for those assertions. If this is the case, then legal conventionalism seems to be in need of some adjustment in order to preserve the hermeneutic constraint, i.e., the methodological requirement according to which the explanation of social facts must give an account of participants? point of view. By exploring a quasi-realist version of interpretative statements the author purports to show that conventionalism may be able to satisfy the constraint, preserving the deflationist view of conventions and without espousing an error theory.