How law is like chess

Legal Theory

Volumn 12, Issue 4, 2006, Pages 347-371

  Marmor, Andrei ^a  

^a UNIVERSITY OF SOUTHERN CALIFORNIA   (United States)

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EID: 84984671617     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325206070121     Document Type: Article

References (26)

1. See, e.g., H. KELSEN, PURE THEORY OF LAW (Knight trans., 1967); KELSEN, GENERAL THEORY OF LAW AND STATE (Wedberg trans., 1961). For a detailed bibliographical note on Kelsen's writings in legal philosophy, see Marmor, Pure Theory of Law, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY (2002), at http://plato.stanford.edu/entries/lawphil-theory/.
2. H. L. A. HART, THE CONCEPT OF LAW (1961), ch. 5. The explicit reference to the conventional nature of the rules of recognition is in Hart's Postscript, published posthumously in CONCEPT OF LAW (2d ed. 1994), at 256. For a very interesting account of the difference between the basic norm and the rule of recognition, see J. RAZ, THE AUTHORITY OF LAW (1979), ch. 7.
3. Dworkin famously denies that this is the only type of answer to the question of what makes statements of type 1 true; see R.DWORKIN, The Model of Rules I, in TAKINGRIGHTS SERIOUSLY (1977.) But even Dworkin does not deny that a statement of type 2 can be and often is a perfectly adequate answer to the question of what makes 1 true.
4. See Dworkin famously denies that this is the only type of answer to the question of what makes statements of type 1 true; note 1.
5. This dual function of constitutive rules has been noted by J. Searle; see SEARLE, SPEECH ACTS 33-34 (1969).
6. L. Green, The Concept of Law Revisited, 94 MICH. L. REV. 1687-1717 (1996), at 1697.
7. Onemight think that at least judges and legislators must be presumed to regard the legal obligations as a species of moral obligation. But this is mistaken. Arguably, judges and other officials are under a moral obligation to follow the law that is stronger than the obligation of others. But this, again, is a moral obligation that must be grounded on moral reasons, not on the conventions that constitute what the law is. I have explained this in greater detail in MARMOR, POSITIVE LAW AND OBJECTIVE VALUES (2001), ch. 2.
8. KELSEN, PURE THEORY OF LAW [REINE RECHTSLEHRE] (1st ed. 1934), KELSEN, INTRODUCTION TO THE PROBLEMS OF LEGAL THEORY (Paulson & Paulson trans., 2002), at 59.
9. Kelsen was not unaware of the difficulty. In the first edition of the PURE THEORY OF LAW, he suggests the solution to this problem by introducing international law as the source of validity for changes in the basic norms of municipal legal systems. It follows from the basic norm of international law, Kelsen maintains, that state sovereignty is determined by successful control over a given territory. Therefore the changes in the basic norm that stem from successful revolutions can be accounted for in legalistic terms, relying on the dogmas of international law; KELSEN, PURE THEORY OF LAW [REINE RECHTSLEHRE] note 13 (1st ed.), at 61-62. The price Kelsen had to pay for this solution, however, is rather high: he was compelled to claim that all municipal legal systems derive their validity from international law, and this entails that there is only one basic norm in the entire world, namely, the basic norm of public international law. Although this solution is repeated in the second edition of the PURE THEORY OF LAW (KELSEN, PURE THEORY OF LAW [REINE RECHTSLEHRE] note 13, at 214-215), Kelsen presented it there with much more hesitation, perhaps just as an option that would make sense. It is not quite clear whether Kelsen really adhered to it. The hesitation is understandable; after all, the idea that municipal legal systems derive their legal validity from international law would strike most jurists and legal historians as rather fanciful and anachronistic. (We should recall that the development of international law is a relatively recent phenomenon in the history of law.)
10. I have expressed this criticism in Marmor, Kelsen was not unaware of the difficulty. note 1.
11. DAVID LEWIS, CONVENTION: A PHILOSOPHICAL STUDY (1968). Hart does not explicitly refer to Lewis, but given the influence of Lewis in this area by that time, it is hard to imagine that Hart was not aware of it. For my critique of Lewis's account of social conventions, see Marmor, On Convention, 107 SYNTHESE 349 (1996). The thesis that the rules of recognition are coordination conventions was first suggested, as far as I know, by G. Postema, Coordination and Convention at the Foundations of Law, 11 J. LEGAL STUD. 165 (1982).
12. Marmor, CONVENTION: A PHILOSOPHICAL STUDY note 17; Marmor, CONVENTION: A PHILOSOPHICAL STUDY note 12, ch. 1.
13. Note that following a rule (as opposed to just acting in accordance with a rule) is a complex condition. It probably entails that the agent regards the rule as a reason for action and perhaps a reason to exert pressure on others to comply with the rule, etc.
14. A note on usage: I assume here that “rule” is the content of a linguistic form and thus rules can be valid or correct irrespective of practice. I use the word “norm” to indicate a rule that is followed by a population or at least is regarded as binding by a population. Thus the terms social rule and norm will be used interchangeably.
15. See T. Burge, On Knowledge and Convention, 84 PHIL. REV. 249 (1975). Note that there are three types of mistakes people can make about the conventionality of a rule: (1) people can be mistaken about the reasons for the rule; (2) people can mistakenly believe that the rule has no alternatives and think that it is not a convention, whereas in truth it is (this is Burge's main point); or (3) vice versa, people can think that a rule is a convention because they believe that it has an alternative, though in truth it does not. The third type of mistake is very uncommon. An example might be generative grammar: people may have thought that deep rules of grammar are conventional, but Chomsky and his followers argue that they are not, since those rules actually have no humanly possible alternatives.
16. See LEWIS, On Knowledge and Convention note 17, at 76-80.
17. In a sense, then, arbitrariness admits of degrees. We could say that a rule is completely arbitrary if the reason to follow it entails complete indifference between the rule R that people do follow and its alternative(s) S that they could have followed instead to achieve the same purpose. Then a rule becomes less and less arbitrary as we move away from complete indifference, up to the point at which the reason to follow the rule that is actually followed by others is just slightly stronger than the reason to prefer an alternative.
18. This example might be controversial, of course, depending on one's preferred metaethical account of the nature of morality. Other examples, however, can be given. Some aspects of logic and norms of rationality are clearly not conventional.
19. See J. COLEMAN, THE PRACTICE OF PRINCIPLE 93 (2003). Coleman himself, however, no longer holds the view that the rules of recognition are coordination conventions, though at some point he did. Id. at 94. See also Postema, This example might be controversial, of course, depending on one's preferred metaethical account of the nature of morality. note 17, at 165.
20. What I have in mind here is something like William Gallie's idea about essentially contested concepts. People's conception of the practices they engage in and their reasons for participation might allow for different conceptions pretty much as Gallie describes. (Interestingly, Gallie's main example of how such conceptions work is an example of a game.) See Gallie, Essentially Contested Concepts, PROC. ARISTOTELIAN SOC'Y 167 (1956).
21. See J. RAZ, PRACTICAL REASONS AND NORMS 108-111 (1975).
22. See H. Schwyzer, Rules and Practices, 78 PHIL. REV. 451 (1969).
23. HART, Rules and Practices note 2, ch. 5.
24. As I argue in Marmor, Rules and Practices note 2 note 37, there are two ways in which conventions can be codified: I call them legislative codification and encyclopedic codification. Legislative codification of rules purports to determine authoritatively what the rules are. In contrast, encyclopedic codification purports only to report what the rules are without actually determining their content for the future (such as codification of grammar rules in textbooks or dictionaries, etc.). It is the legislative form of codification that I am concerned with here.
25. As far as I could ascertain, the first official international codification of chess rules occurred in 1929 in Venice by FIDE, the World Chess Federation.
26. Not, to be sure, its moral legitimacy. That is a separate issue.