Conventionalism Unchained and Sceptical. A Defence of a Quasi-Realist Account of Legal Statements Against Dworkin's Criticism

Abstract

Dworkin famously argued that Hart´s practice theory is not able to give an account of legal duties and therefore that it is a bad theory of law. Conventions were then proposed as a substitute for the practice theory capable of showing the existence of legal duties. In this text Arena examines two different conventionalist strategies that have been proposed as answers to Dworkin´s criticisms Marmor´s constitutive conventionalism and Postema´s constructive conventionalism. Arena claims that both proposals remain captive of Dworkin´s premises and that this has led them to overstate the cooperative dimension of legal practice. Dworkin´s argument is based on the premise that without explaining the existence of legal duties a theory would be unable to explain some essential features of law: judges´ statements of duty and disagreements. Arena argues against this premise by claiming, first, that judges´ statements of duty are just a projection of their attitudes both on the action considered mandatory or forbidden and on the conventional interpretative method they use to ground that statement. Second, that this projectivist perspective may account for judges´ talk in terms of truth value and for their disagreements. On the one hand, by following a quasi-realist schema, Arena claims that judges must earn their right to talk about truth and, on the other hand, he claims that judges´ disagreements are genuine disagreements in attitudes.