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Conventions and The Normativity of Law

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This essay criticises the attempt to explain the so-called normativity of law with reference to a model of coordination conventions. After specifying the explanandum of the normativity of law, I lay out the conceptions of 'coordination' and 'convention' and how the combination of both sets out to contribute to legal philosophy. I then present two arguments against such an account. Firstly, along a reductio ad absurdum, I claim that if an account of coordination conventions tries to explain the normativity of law by focusing on a coordination problem among judges it leads to self-contradiction. Secondly, I argue that even if one allows for widening the coordination problem beyond the group of judges, one is unable to account for the notion of duty. I will substantiate this second argument by distinguishing different scopes of the deontic operator "ought". I conclude by reconsidering what explaining the normativity of law could amount to.
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Keywords: CONTINGENCY OF LAW; CONVENTION; COORDINATION; INSTRUMENTAL RATIONALITY; JUDICIAL DUTY; LEGAL POSITIVISM; NORMATIVITY OF LAW; RULES OF RECOGNITION

Document Type: Research Article

Publication date: April 1, 2018

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  • Archiv für Rechts- und Sozialphilosophie, edited by authorisation of the International Association for Philosophy of Law and Social Philosophy (IVR), is an international, peer-reviewed journal, first published in 1907. It features original articles on philosophical research on legal and social questions, covering all aspects of social and legal life.
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