Rules, Conventionalism and Normativity: Some Remarks Starting from Hart

Abstract

The paper deals with legal positivism “conventionalist turn” in relation to the matter of the duty to obey the law and legal normativity. In this respect, conventionalist legal positivism is worth considering a) for it offers an explanation of legal normativity partly different vis-à-vis previous ones and b) for it tries to preserve the autonomy of legal obligation from moral obligation and coercion, respectively. Here I will only focus on legal conventionalism sketched out by Hart in the Postscript. Indeed, Hart’s conventionalism faces troubles which in some way affects also other distinguished versions of legal conventionalism like, for example, those worked out by Jules Coleman, Andrei Marmor and Scott Shapiro. Other “stronger” versions of legal conventionalism like, for example, those advanced by Chaim Gans and Gerald Postema, succeed in avoiding some of the traps in which fall the previous ones but, paraphrasing Hart, the outcome is distortion as the price of internal coherence. To sum up, legal conventionalism follows two pathways, both of them in the end unsatisfactory. The first pathway – opened by Hart – leads to a “weak” version of conventionalism. This approach fails in so far as it does not succeed in preserving the autonomy of legal obligation from moral one. The second pathway – followed in different ways by Gans and Postema – does not soften conventionalism and so it achieves the outcome to design a coherent conventionalist model of legal normativity but at the price of distorting reality.