Abstract

LOPEZ-LORENZO, Miguel José. Moralized Conventions in Law. Probl. anu. filos. teor. derecho [online]. 2016, n.10, pp.111-134. ISSN 2448-7937.

Suppose Jack wishes to settle Blackacre upon Jill under a trust. If the law requires him to manifest that trust in writing, in virtue of what does this standard obtain? What makes it the case that the law requires what it does? One view is that legal standards constitutively depend for their existence and content on social conventions followed by judges and other officials. Another is that certain moral principles make propositions of law true and thus give law its content. Pace Dworkin, I do not believe that we should endorse the latter at the expense of the former. My view is that we do better to reconcile the thought that there are social conventions at the foundations of law with the thesis that certain moral principles feature in a constitutive explanation of legal standards. I shall begin by elaborating a moralized conception of what social conventions are and how they work. With that in place, my next task will be to demonstrate how and why we do better to integrate these two competing perspectives on the nature of law; although I emphasize that the argument throughout is speculative rather than conclusive.

Keywords : Legal Conventionalism; Social Conventions; Morality; Legal Practices; Normativity; Ronald Dworkin.