Many readers are aware that arguments by Ronald Dworkin (in particular, his argument from theoretical disagreement) and by various persons claiming that social practices cannot be normative challenge the idea that law is founded on a social convention. More than forty years ago, Gerald Postema attempted to meet these objections with a Humean-Lewisian account of foundational legal convention.1 Marcin Matczak contends that another, virtually overlooked, and radically different account of conventions can surmount these objections. That account can be found in the works of Ruth Millikan. Millikan’s account, he argues, can ground a foundational-convention theory of law while avoiding the pitfalls of a Lewisian account of conventions.
Matczak’s first and most developed point is that, using Millikan, arguments from the contestability of conventions (i.e., from disagreement) do not undermine the claim that legal systems rest on a foundational convention for recognition of valid law. This conclusion follows from three surprising features of Millikan’s account of conventions: (a) neither universal nor general compliance is required for a type of convention suitable for law, (b) participants need not have mutual expectations, know others’ intentions and preferences, or be aware of the purpose of a convention, and (c) conventions do not set prescriptive rules governing future conduct. These three features fly in the face of a number of orthodoxies about conventions in general or legal conventions in particular. Nonetheless, I find them appealing.
To be clear, Millikan does hold that conventions require some (unspecified) amount of compliance. On Millikan’s view, conventions arise and are retained when certain behavioral patterns, reproduced by others, are effective in benefitting these persons or the group. Compliance is required in order to (a) form a pattern that can be followed and (b) be functional enough to generate “proliferation.” Proliferation occurs according to a kind of invisible hand mechanism (akin to biological selection) when the convention is useful, serving what Millikan calls its “proper function.” Proper function, it should be noted, need not have a moral dimension. Proper function has something to do, directly or indirectly, with “fitness” and putting “the participants in a better position vis-à-vis the world they are navigating.” (P. 167.)
Instead of prescriptive rules, conventions are lineages of copied behavior, where tokens of behavior take on the role of precedents (without the “intermediate step” of a postulated rule). Applying this conception of conventions to Hartian positivism, Matczak remarks that the so-called “rule of recognition” as a convention would then not be a prescriptive rule but rather “a series of acts of recognition [by officials of a valid rule of local law, e.g.] … copied one from another and forming a historical lineage.” (P. 155.) Strictly speaking, there is no foundational rule of recognition, save a descriptive one for the practice so far. There is rather a recognitional practice.
So from whence come disagreements? One of Matczak’s accounts of the source of disagreement is founded on his view of precedent-following, which in an “easy case” amounts to doing the same thing in “obviously similar” circumstances. There can be disagreement when the circumstances are not obviously similar about how similar they are and with respect to what “features” that similarity is to be judged.
To understand another source of disagreement, recall that a convention’s value in fulfilling a proper function need not be consciously apprehended by those who conform to it. However, the value might be; and there can be arguments for “defections” on the grounds of improving or retaining the conventions’ benefits (fulfilling the proper function). One result of applying this theory to the recognitional practice in law, Matczak suggests, is that that practice can be discursive. Another result, Matczak claims, is that the practice can and should include the “rules” or “canons” of interpretation that are disputed in a legal system.
Matczak further contends that Millikanian conventionalism can explain how conventions can be normative. For this, Matczak uses Millikan’s idea of proper function. The idea that the normativity of a convention for its participants stems from its effectiveness in achieving something of value or fulfilling a function is not new to Matczak, of course. But surprisingly, conventions are not instrumental in value on Millikan’s view; their value does not come from being a means to something good external to them. Their value is internal. Their proper function is constitutive of them, determining which behaviors in an ongoing practice are relevant or irrelevant.
The article is not perfect. Millikan’s account of the value of conventions is evolutionary at heart; ultimately, the value of conventions is survival value. Matczak does not make the link clear between recognitional legal conventions and survival value. His detailed discussion of the recognitional convention and his selection of its proper function and type of convention are difficult, if not impossible, to reconcile with common law legal systems in general (recognizing unlegislated common law doctrine) and the U.S. system, with its judicial review of legislation on constitutional grounds, in particular.
Nonetheless, Matczak’s article is both intriguing and important. Its importance does not lie solely in his demonstration of advantages of Millikan’s theory over the dominant Lewisian account in meeting challenges raised by Mark Greenberg, Leslie Green, Julie Dickson, Scott Shapiro and Joseph Raz. Matczak’s suggestion of a shift to Millikan’s account requires the rejection of well-established theories on which at least two legal philosophers base key elements of their accounts of law: David Lewis on convention (the Postscript H.L.A. Hart) and Michael Bratman’s planning theory (Shapiro).
In sum, Millikan’s account of conventions involves a rethinking that is worthwhile if the account has the advantages Matczak claims it has for a positivist theory of law. For this reason, this article is worthy of serious consideration.
- Gerald J. Postema, Coordination and Convention at the Foundations of Law, 11 J. of Legal Stud., 165 (1982). Coleman responded to the objections by offering a different account of the foundational convention as a joint-commitment enterprise creating a “framework of interaction” and of “ongoing negotiation.” Jules Coleman, The Practice of Principle (2001) at Lecture Seven and pp. 157-58.
