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Symposium on the internal legal positivism

Interpretative conventions and legal positivism

María Gabriela Scataglini
This article is a translation of:
Convenciones interpretativas y positivismo jurídico [es]

Abstracts

The thesis that the content of law depends on the "interpretative conventions" of legal practice implies that what the rules establish is not always determined by their literal meaning. To leave aside the literal interpretation of a word (by extending or limiting its ordinary meaning) or the literal interpretation of a rule (for example, by considering a circumstance as an exception, even if it is not explicitly mentioned), and to argue that it is what the law requires means entering the realm of the implicit. But what is "the implicit"? Does it consist in the criteria implicit in the social practice of law (i.e., in the interpretative conventions "without restrictions") or only in what the legislator has implicitly established (i.e., in the interpretative conventions "with restrictions")? In light of this distinction, recently pointed out by Cristina Redondo, I discuss some of the questions she raises about the "relevance thesis" of the legal system as something other than the "relevance hypothesis", and I critically discuss her view that the choice between the interpretative conventions "without restrictions" and those "with restrictions" implies a choice between inclusive and exclusive legal positivism.

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1 Introduction

  • 1 Bayón 2002.
  • 2 In this paper I will use the terms "literal meaning" and "ordinary meaning" interchangeably because (...)
  • 3 Bayón 2002: 79. It should be noted that sharing interpretative conventions is about having an abili (...)
  • 4 Bayón 2002: 63.

1The thesis that the content of law depends on the "interpretative conventions" of legal practice1 implies that what the rules establish is not always determined by their literal meaning.2 Interpretative conventions are implicit criteria shared by participants of legal practice about how a word or a rule are to be understood or applied (i.e., knowing what counts as a particular instance of that word or rule in legal practice). The content of interpretative conventions is shown in the agreement on some paradigmatic cases that are recognized as correct applications of the rule.3 Being so, the core of clear cases determined by semantic conventions may be different from the core of clear cases determined by semantic conventions plus interpretative conventions.4

  • 5 Bayón 2002: 63.

2This implies rejecting a “simple positivism” that ignores the existence of interpretative conventions, or just assumes that we have only one interpretative convention: that of literal meaning.5 Simple positivism assumes that "clear cases" are those determined by literal or ordinary meaning, and cases not determined (or not determinable) in that way will be "hard cases" requiring judicial discretion. Determining the correct criterion to distinguish “clear cases" from "hard cases" is a controversial issue in legal literature, but I follow this one: “clear cases" - unlike hard ones - have a correct legal answer (even if reaching it may take some epistemic effort). Accordingly, once accepted that interpretative conventions determine the content of law, it must be acknowledged that there are “clear cases” that have a correct legal answer, although they may not correspond to literal or ordinary meaning of the rule.

  • 6 In this short characterization of interpretative conventions, I deliberately avoid assuming the dis (...)

3In legal interpretation, leaving aside the literal interpretation of a word (by extending or restricting its ordinary meaning) or the literal interpretation of a rule (for example, by taking a circumstance as an exception, even if it is not explicitly mentioned), and to argue that it is what the law requires, means entering the realm of the implicit. This is to admit that there are correct, not necessarily explicit, criteria specific to legal practice that determine how a rule or a word are to be understood.6

  • 7 Following Alchourrón (2000), all conditional statements have implicit exceptions. So, what at first (...)

4Now, what is “the implicit"? What exactly is that is "not expressed" that determines the content of law? Does it consist in the criteria implicit in the legal social practice, or only in what the legislator has established, even if it has not been expressly mentioned (i.e., the "relevance thesis” of the system7)? This alternative has been pointed out by Cristina Redondo (2018: 144-7), who has stressed that there is a contrast between two possible ways of accepting interpretative conventions as determining the content of law: either "without restrictions", that would be, taking what arises from the prevailing interpretative practice without any condition, or "with restrictions” to what the legislator has established explicitly or implicitly.

  • 8 Alchourrón & Bulygin 1971/2002.
  • 9 Redondo notes that in Bulygin 2006, interpretative conventions "without restrictions" are supported (...)

5Redondo formulates this alternative in the context of a critique of Eugenio Bulygin's work, claiming that the Argentine legal theorist - and co-author with Carlos Alchourrón of the famous Normative Systems8 - oscillates ambiguously between these two possible ways of accepting interpretative conventions, without choosing either of them.9 Further, she suggests that, depending on the way they are understood, accepting interpretative conventions may be incompatible with some of the main theses of the mentioned book.

6Regardless of what Bulygin may hold in his defence, what I will try to do in this paper is, first, analyse the alleged inconsistency raised by Redondo, which I reconstruct as follows: (Sec. 2) The acceptance of interpretative conventions might be incompatible with assuming, (2.1), that the identification of the relevance thesis of a legal system is always an act of description; and, (2.2), it is always possible to draw a sharp line between the relevance thesis of the system and a hypothesis of relevance. Second, I critically discuss Redondo's suggestion that, (Sec. 3), the choice between accepting interpretative conventions “without restrictions” and accepting them "with restrictions” to what the legislator established, implies a choice between inclusive and exclusive legal positivism.

2 On accepting interpretative conventions

  • 10 Redondo 2018: 144.
  • 11 Redondo 2018: 144.

7(2.1) The acceptance of interpretative conventions might be incompatible with assuming that the identification of the relevance thesis of a legal system is always an act of description, so Redondo says. She also claims that if interpretative conventions are accepted as determining the content of law, it should be accepted that sometimes the relevance thesis of a system could be controversial or answerable, and, in turn, that its identification would remain a cognitive (identifying) and non-discretional act (not a choice). The obstacle would arise, she says, as to whether "contents on which disagreement exists can still be considered part of the descriptive relevance thesis of a system (assuming that it is still possible to call them conventional)".10 I find no problem in answering this question affirmatively, yet it is problematic for Redondo on the basis of the idea, which she introduces in a footnote quoting Jorge Rodríguez, that no assertion about controversial content can be considered descriptive.11

  • 12 This distinction is stressed by Bayón (2002: 83) by distinguishing between conventionalism in relat (...)
  • 13 Bayón 2002: 76-80.

8Discussing or at least relativizing this idea would solve Redondo's worries. In this regard, something involving the use of the term "conventionalism" should be clarified. First of all, it should be noted that it is one thing to assume a conventionalist ontology regarding the existence of law and another to give a conventionalist answer to the problem of rule-following. These are separate issues.12 It can be argued that the law is -ontologically speaking- a conventional object (in a minimal and lax sense of "conventionalism" that refers to being a product of social relations and intersubjective human agreements) and, at the same time, to avoid a conventionalist answer to the question on following a rule; that is: not assuming that what a rule requires (i.e. its content; its meaning) is given by the unanimous and explicit agreement of the community in its specific applications. Bayon's distinction between "deep conventionalism" as opposed to "superficial conventionalism"13 is - as I understand it - concerning the question of rule-following.

9Within deep conventionalism - which is based on the notions of background and social practice - it is possible to distinguish between, on the one hand, the explicit agreement of the community, and on the other hand, what makes the applications of a rule correct, namely: the shared background criteria - not necessarily transparent or explicit for practitioners – in virtue of which they recognize certain cases as paradigmatic. Well, according to Bayón's characterization, the shared background criteria that determine the correct applications - i.e., interpretative conventions - can, at the same time, coexist with some degree of disagreement and/or error in particular applications. Then, within deep conventionalism it can be said that correction regarding what a rule requires depends on the existence of those shared criteria or social practice but not necessarily on the effective consensus on applications, on which it is accepted that disagreement may arise.

  • 14 Bayón 2002:76-80. When trying to think examples of interpretative conventions, some paradoxical que (...)

10I think that sometimes in saying that the content of a rule (i.e., its meaning) depends on interpretative conventions mentioning the "practice," this is understood as referring to the existence of consensus on applications. This use of "practice" should be disambiguated. The background of interpretative conventions is not identified as a consensus, regularity, or (superficial) convention. The identification of deep conventions does not consist of empirical verification or observation. Instead, Bayón refers to a kind of holistic reasoning, a deliberative practice toward a reflective equilibrium.14

  • 15 Bayón explains (2002: 92): "Deep conventionalism admits the possibility of a widespread error of th (...)

11So, if we accept the notion of "deep conventions", understood not as the description of an observable empirical reality but still as an act of identifying the content of law, the idea that no claim on controversial content can be considered descriptive is refuted. Disagreement could be due to some (or even many15) people being wrong about what the community's background criteria establish as the content of a rule. Still, this does not prevent the existence of a correct legal answer, i.e., the one that these criteria determine, nor that it can be described by an act of identification.

12In conclusion, it seems that accepting deep interpretative conventions as determining the content of law and, in turn, arguing that the relevance thesis of a legal system may be controversial but still capable of identification or description, is perfectly right.

  • 16 Alchourrón & Bulygin (1971: 156-7) distinguish between the “relevance thesis of the system” as a pr (...)

13(2.2) The acceptance of interpretative conventions might be incompatible with assuming that it is always possible to draw a sharp line between the relevance thesis of the system and a hypothesis of relevance.16

  • 17 Redondo 2018: 147.

14Redondo claims that we have a problematic issue here: once we recognize that the identification of interpretative conventions is a complex or step-by-step process, there is no way to warrant a relevance thesis that remains stable. In her own words, there is no way to assure that “(the relevance thesis) does not change from one moment to the next according to the discretion of judges or any other interpreter". She adds that what should be excluded is that the relevance thesis "changes at will of the interpreter, or depends on him/her".17 Thus formulated, she could be misunderstood on this point. First, interpretative conventions could change if background practice changed, and in that scenario discretion would still not come into play. But let's set that quite remote hypothesis aside. The important issue is that the determination of the content of interpretative conventions, as long as it is identification of law, conceptually excludes discretion (being exercised by a judge or by an interpreter or by the whole community; from now on I will speak of these interchangeably as “the interpreter”). Therefore, concluding that the alternative is between stability, on the one hand, and discretion or free will of the interpreter on the other hand, would be wrong. Identification of interpretative conventions is de facto made by the interpreter, but nothing prevents the interpreter from identifying them (nor does that such identification eventually remains stable). Let me explain.

15Redondo stresses the contrast between identifying interpretative conventions “without restrictions” and identifying them "with restrictions” to what the legislator established explicitly or implicitly, as already mentioned. The way she presents the analysis makes it seem like the opposite of interpretative conventions “with restrictions” to what the legislator established, is the instability of the relevance thesis of the system and the defeasibility of legal rules.

  • 18 Jorge Rodríguez (2021: 377) stresses: "A jurist could be genuinely trying to reconstruct those prop (...)

16It should be clarified that accepting interpretative conventions “without restrictions” does not necessarily imply that when someone interprets, she is postulating a hypothesis of relevance understood as an alternative or criticism of the relevance thesis established by the legislator (i.e., a prescriptive hypothesis of relevance). The interpreter is not always expressing –in a disguised way or not- her opinion on what the law should be. On the contrary, when identifying interpretative conventions, what the interpreter does is to describe what the law is, according to the implicit criteria governing the legal practice (i.e., issuing a descriptive hypothesis of relevance).18

17This is precisely the challenge that Bayón poses in distinguishing interpretative conventions from mere exercise of discretion and, in turn, stressing that such conventions are not identified by empirical verification. It should be noted that the background criteria that constitute the interpretative conventions are, in a broad sense, normative: a kind of know-how, the mastery of a technique (i.e., how something is correctly understood, what arguments/reasons are legally admissible or not to introduce exceptions) yet, they can be identified descriptively.

  • 19 See footnote 7, quoting Alchourrón (2000: 25-27), and footnote 18, quoting Rodríguez (2021: 377).

18Once it is clear that when we talk about identifying interpretative conventions we are talking about issuing a descriptive hypothesis of relevance, only then - and keeping that in mind- the contrast claimed by Redondo arises. In the context of that reconstruction/description the emphasis can be placed on the legislator’s will, that is, to formulate a descriptive hypothesis of relevance of the axiological system of the authority (something like Carlos Alchourrón's dispositional approach, or Jorge Rodríguez’s proposal),19 or rather strive to describe/identify the background criteria implicit in the legal practice understood as a social practice (which is more like Bayón’s idea of shared deep conventions).

19The contrast exists and Redondo is quite right to point it out. But the contrast does not run in parallel with the opposition between the relevance thesis of the system vs. the prescriptive hypotheses of relevance. In both cases, namely, interpretative conventions with or without restrictions, it is about reconstructing the law as it is (i.e., a descriptive hypotheses of relevance). It is just that in the first case it is done in a more originalistic way.

20I think the contrast encompasses two possible ways of conceiving law itself: one conception that emphasizes the notion of system and another grounded on the notion of social practice. This does not mean that both items oppose one another. Rather, it seems to be a matter of focus or emphasis about a general conception of law. Now, returning to the interpretative matter and on the question of stability, that emphasis does not seem illuminated by putting the pair legislator/stable thesis of relevance on one side, and the pair interpreter/unstable hypothesis of (prescriptive) relevance on the other one.

  • 20 Alchourrón & Bulygin 1971/2002.

21In conclusion, reformulating Redondo's original claim, I believe that the notion of interpretative conventions, even in its two versions "without restrictions" or "with restrictions” to what the legislator established, is not incompatible with the possibility of keeping a sharp distinction between the relevance thesis of the system and an hypothesis of relevance as conceived in Normative Systems,20 even more so when keeping in mind that it is a prescriptive hypothesis of relevance that is referred to in that book.

3 The choice between inclusive and exclusive positivism

  • 21 Redondo (2018: 148) literally says: "Inclusive legal positivism argues – as Bulygin also does in Le (...)

22Redondo argues that the choice between accepting interpretative conventions "without restriction" or "with restrictions” to what the legislator established explicitly or implicitly implies a choice between the inclusive and exclusive legal positivism.21 I disagree with her on this idea.

23I have already said that Bayón stresses the determination of interpretative conventions as a way of identifying the law (even if this task may become epistemologically hard), and this involves distinguishing that exercise, from discretion on the one hand, and from moral reasoning, on the other.

  • 22 Moreso & Vilajosana 2004.

24In accordance with the classic characterization of Moreso and Vilajosana,22 inclusive legal positivism sometimes admits the incorporation of moral reasoning in order to identify the content of law.

  • 23 This conclusion seems sound, since in the same paper in which Bayón characterizes interpretative co (...)

25So, if we accept: (i) that the determination of interpretative conventions is always identification of the content of law (as opposed to moral reasoning or discretion), and (ii) that inclusive legal positivism entails introducing moral reasoning for the purposes of identifying legal norms, then the determination of the content of law according to the interpretative conventions always falls within the framework of exclusive legal positivism (it doesn’t matter if such a process acquires an originalist nuance or not).23

26Accordingly, we must conclude that the choice between the two ways of identifying interpretative conventions - with or without restrictions - is not related to the distinction between exclusive or inclusive legal positivism, or in other words, with the necessity or contingency of the thesis on the separation between law and morals (assuming contingency as that, in some cases, determining the content of law may depend on morals and not on social sources).

  • 24 This is the path followed in Orunesu 2007.

27Nevertheless, Bayon's hypothesis-(i)- could be rejected. So, it could be claimed that since as a matter of fact nothing prevents interpretative conventions from referring to morals, on those occasions the identification of law would depend on moral argumentation. And, to avoid Bayon’s critique that this would imply having abandoned the conventionalist ontology inherent to all positivism, one should stress an argument showing that a convention that refers to an unconventional criterion may exist, and that it would not be an apparent or empty convention.24

  • 25 Redondo 2018: 154.

28But Redondo takes another path. She distinguishes the conceptual question of what the law is (as something different from other normative orders such as morals) on the one hand, from another question concerning what the law is in Spain, Italy, Argentina, etc., which relates to how the thesis of relevance of (that) legal system is identified. According to her view, exclusive legal positivism sees the first question – the conceptual one – as imposing a restriction on the second one -related to the identification of the thesis of relevance of a particular system. As a consequence of this restriction, anything that is not relevant in the legislator’s system is descriptively irrelevant. This would draw a limit on what can be law in each legal system. Redondo stresses that this conceptual restriction, which makes the above a necessarily true statement, would not be a mere stipulation but an implicit feature of a correct understanding of the concept of law and its connection to the notion of authority. She herself considers that such a restriction "may seem inadmissible or excessive".25

  • 26 Redondo 2018: 151. Here it is not clear whether in using "conventions" Redondo means the technical (...)

29In characterizing the response of inclusive legal positivism, Redondo notes that it does not establishes any restriction on the criteria or content in answering the "conceptual question" about what the law is, so it may include moral (not conventional) criteria, provided that they are accepted by practice. Redondo acknowledges that here the inclusive legal positivist would be admitting what the positivist concept of law precludes, namely, resorting to morals to determine what the law is. However, she suggests a way out. She says that the inclusive legal positivist could abandon the conventionalist ontology concerning the concept of law in order to pose that law is an institutional object, that is, "that it has its origin and depends on beliefs and attitudes, but that it is not necessarily a conventional object and is not necessarily identified as conventions are.”26

30Accepting Redondo's general approach for a moment, and keeping in mind that the restriction of interpretative conventions to what the legislator established might seem excessive or inadmissible to her, we might ask: is Redondo suggesting to accept the interpretative conventions "without restrictions" and with them the inclusive legal positivism (in the terms she has defined that position), and to reject exclusive legal positivism and the conventionalist ontology with it?

  • 27 It could be asked: what exactly would it mean for an interpretative convention to "refer to morals" (...)

31To clear the issue, we must remember the distinction I made in 1.1 between "conventionalism" in relation to the existence or the ontological status of law and in relation to the content of law or about rule-following. Within Redondo’s general approach, accepting interpretative conventions “without restrictions” to determine the content of a particular system would mean embracing inclusive legal positivism, since it is accepted that such conventions could eventually refer to morals.27 This would imply giving up conventionalism not only in relation to the content of law (i.e., it would be accepted that it sometimes does not depend on social sources), but also in relation to the existence of law (i.e., law would no longer be a "conventional object"). Here the two issues of "conventionalism" I had distinguished seem to collapse. I think that is why her analysis is misleading.

32Instead, in my proposal, conventionalism in relation to the existence of law and conventionalism in relation to its content are separable issues. Therefore, interpretative conventions "without restrictions" are compatible with exclusive legal positivism. This is so because regarding the content of law it is possible to reject "superficial conventionalism" (that argues that the community’s effective consensus determines what a rule requires) in pursuit of "deep conventionalism", but in turn, regarding the existence of law, to keep ontological conventionalism as an inherent feature of positivism. That is, to conceive law as a conventional phenomenon, in the sense of being a product of social relations and intersubjective agreements between humans (i.e., a social practice).

33In fact, the latter is quite similar to Searle's "institutional object" to which Redondo refers, so we would not likely disagree on that issue. The controversial matter would be that, under my reconstruction, accepting interpretative conventions "without restrictions" does not mean abandoning conventionalism in relation to the existence of law (nor a deep conventionalism -albeit a superficial one– in relation to its content) and so it doesn’t lead to rejecting exclusive legal positivism.

34Thus, in my analysis it would be possible to show that "Internal Legal Positivism" (the novel position that Redondo presents in her valuable book, so titled) is not – and does not go hand in hand with – inclusive legal positivism.

Acknowledgments.A preliminary version of this paper was presented at the Special Workshop on Cristina Redondo’s book, Positivismo jurídico "interno" (Klub Revus, 2018), coordinated by Paula Gaido and organized by the Asociación Argentina de Filosofía del Derecho on September 10, 2019 at the Facultad de Derecho de la Universidad de Buenos Aires. I wish to thank the participants of the Special Workshop and the anonymous referees of this publication for their comments and suggestions.

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Bibliography

Alchourrón, C. (2000). Sobre derecho y lógica (J. Rodriguez con la colaboración de S. A. Militello, trad.). Isonomía13, 11-33.

Alchourrón, C. & Bulygin, E. (2002). Introducción a la metodología de las ciencias jurídicas y sociales (1ª ed.). Astrea. (Original work published 1971).

Bayón, J. C. (2002). Derecho, convencionalismo y controversia. En P. Navarro & M. C. Redondo (Eds.), La relevancia del derecho. Ensayos de filosofía jurídica, moral y política (pp. 57-92). Gedisa.

Bulygin, E. (1991). Normas, Proposiciones Normativas y Enunciados Jurídicos. En C. Alchourrón & E. Bulygin, Análisis Lógico y Derecho (pp. 169-193). Centro de Estudios Constitucionales.

Bulygin, E. (2005). En defensa de El Dorado. Respuesta a Atria. En F. Atria, E. Bulygin et al., Lagunas en el Derecho. Una controversia sobre el derecho y la función judicial (pp. 73-85). Marcial Pons.

Bulygin, E. (2006). El positivismo jurídico. Fontamara.

Lewis, D. (1969). Convention. A Philosophical Study. Basil Blackwell.

Moreso J. J. & Vilajosana J. M. (2004). Introducción a la teoría del Derecho. Marcial Pons.

Narváez Mora, M. (2015a). Expressing norms. Revus – Journal for Constitutional Theory and Philosophy of Law, 25, 43-70. https://journals.openedition.org/revus/3191

Narváez Mora, M. (2015b). Expresiones de normas. Revus – Journal for Constitutional Theory and Philosophy of Law, 25, 71-100. http://revus.revues.org/3266

Orunesu, C. (2007). Sobre la inconsistencia teórica del positivismo incluyente. Análisis Filosófico, XXVII, Nº 1, 23-46. https://analisisfilosofico.org/index.php/af/article/view/178

Redondo, M. C. (2018). Positivismo jurídico “interno”. Klub Revus.

Rodríguez, J. L. (2021). Teoría Analítica del Derecho. Marcial Pons.

Scataglini, M. G. (2021). Seguimiento de reglas: el “aguijón pragmático” en la teoría del derecho. Marcial Pons.

Vilajosana, J. M. (2010). Una defensa del convencionalismo jurídico. Doxa, Cuadernos de Filosofía del Derecho33, 471-501. https://doxa.ua.es/article/view/2010-n33-una-defensa-del-convencionalismo-juridico

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Notes

1 Bayón 2002.

2 In this paper I will use the terms "literal meaning" and "ordinary meaning" interchangeably because they are used as such in Bayón’s paper, to which I refer, as well as among legal theorists in general. However, I consider the term "literal meaning" to be ambiguous and philosophically problematic. In Scataglini (2021) I have suggested doing without it and just using "ordinary meaning" for referring to the meaning that words have in everyday use, as opposed to the meaning they acquire in legal practice. The main problem with "literal meaning" is that if a word has a totally acontextual meaning – that is, it is only determined by linguistic rules or semantic conventions without incidence of pragmatic factors –, then such a thing does not exist even in the ordinary use of language.

3 Bayón 2002: 79. It should be noted that sharing interpretative conventions is about having an ability (i.e., to recognize whether an exception or an extended or restrictive interpretation of a term are legally acceptable). Such a skill involves mastering a technique of use, having a “know-how” (not necessarily a “know that” -i.e., a knowledge expressible by propositions). Of course, it is not a matter of some mysterious knowledge, but instead of the skill acquired by those who – by means of training - participate and become familiar with the legal practice, sharing actions among others within that social practice. Since interpretative conventions are "substantive" criteria, it would be inappropriate to describe them as an "interpretative method". A different question - independent of the above - regards determining the method that can be used to identify or find the current interpretative conventions.

4 Bayón 2002: 63.

5 Bayón 2002: 63.

6 In this short characterization of interpretative conventions, I deliberately avoid assuming the distinction between norms and norm formulations (Bulygin 1991). This is a widely accepted distinction (sometimes also referred to as that between legal rule and provision or rule and legal text). I have some hesitations with such a distinction, but I can't explain them in this paper. In a nutshell, I find it problematic to think of meaning as an abstract entity that as a kind of "halo" surrounds or "informs" a naked text. For further development see Scataglini (2021). A radical critique of the distinction between norms and norm formulations is found in Narváez Mora 2015a and 2015b.

7 Following Alchourrón (2000), all conditional statements have implicit exceptions. So, what at first glance would appear as the relevance thesis of a system – that one explicitly issued- could in a second analysis include something that the legislator has not expressed, but that is nevertheless considered to have been implicitly established. In the context of what Alchourrón calls a dispositional approach, the question is to interpret counter-factually what the legislator's solution would have been if she had considered a certain circumstance, but which she did not in fact consider. This is not a factual investigation, but a counter-factual and interpretative investigation of the legislator's values. For example, if it were to be concluded that a certain circumstance – if considered by the legislature – would have been taken as an exception, it must be understood, as Alchourrón says, that although it may seem paradoxical, such circumstance was always an exception contained in the issued legal rule. Alchourrón 2000: 25-27.

8 Alchourrón & Bulygin 1971/2002.

9 Redondo notes that in Bulygin 2006, interpretative conventions "without restrictions" are supported. Instead, in Bulygin 2005, interpretative conventions are taken just as what has been established by the legislator explicitly or implicitly.

10 Redondo 2018: 144.

11 Redondo 2018: 144.

12 This distinction is stressed by Bayón (2002: 83) by distinguishing between conventionalism in relation to conditions of existence of law and conventionalism in relation to its content, arguing that positivism is necessarily committed to the former but not the latter.

13 Bayón 2002: 76-80.

14 Bayón 2002:76-80. When trying to think examples of interpretative conventions, some paradoxical questions arise. That’s because the explanation of meaning usually becomes trivial (even in the context of a specific practice such as legal practice). We don't need to say how we recognize anything as something, when we know how to do it. The implicit background operates autonomously and automatically. The need for explanation arises when there is some mismatch or some feature that doesn’t fit. This leads us to reflexively "look back" to the background and –through amendments and adjustments – try to articulate the criteria that we are actually dealing with.

15 Bayón explains (2002: 92): "Deep conventionalism admits the possibility of a widespread error of the community about what a rule requires in a given case, but at the same time, it puts a limit on the amount of collective error that can be meaningfully admitted: because to argue that it is possible that (almost) everyone is wrong about (almost) all cases would be equivalent to denying the very existence of that background of shared criteria which is precisely what would allow us to say, in a given case, that the whole community is wrong." (My own translation). Thus, the existence of disagreement is not a problem those who avoid a conventionalist answer on rule-following should face. Let me briefly clarify: only for the "superficial conventionalist" disagreement means an obstacle to assert that a rule exists. This is because those who think that the existence of rules depends on unanimous agreements on applications are forced to prove that those agreements actually exist in order to assume that, consequently, the rules in question do. I cannot address the complex question of the existence of rules here. In a nutshell, asserting that a rule exists just requires us to be able to recognize (at least some) paradigmatic cases of it (i.e., to understand its meaning). This is conceptually distinguishable from actual agreements on applications and even from a great majority of clear cases empirically verified.

16 Alchourrón & Bulygin (1971: 156-7) distinguish between the “relevance thesis of the system” as a proposition that identifies a set of properties that are relevant to a universe of actions, and the "hypothesis of relevance" as the proposition that identifies the set of properties that should be relevant to a universe of actions. The relevance thesis assumes a descriptive criterion, while the hypothesis of relevance assumes a prescriptive or axiological criterion applied by an interpreter.

17 Redondo 2018: 147.

18 Jorge Rodríguez (2021: 377) stresses: "A jurist could be genuinely trying to reconstruct those properties that should be considered relevant according to the axiological system of the authority itself, and not proposing her own value judgments, even in disguise. In issuing certain legal rules, the authority presupposes a particular axiological system. And if in some case it is true that a property has not been considered relevant because it was not taken into account at the time of the enactment of the legal rules, but that, had it been considered by the authority, it would have correlated the case with a different solution, then it could be said that that property should be considered relevant according to the axiological system of authority. /.../ From this descriptive reading of the hypothesis of relevance, and accepting the additional premise that the axiological system from which it is derived is a reconstruction of the axiological system of the authority, it could be argued that the property in question is relevant in the legal system, not that it should be." (My own translation.)

19 See footnote 7, quoting Alchourrón (2000: 25-27), and footnote 18, quoting Rodríguez (2021: 377).

20 Alchourrón & Bulygin 1971/2002.

21 Redondo (2018: 148) literally says: "Inclusive legal positivism argues – as Bulygin also does in Legal Positivism – that the criteria for the identification of law depend on the prevailing "interpretative conventions", without restriction. It follows from that argument that what the legislator wanted or attempted to legislate must be taken into account only to the extent that it is so established by the interpretative conventions in force. By contrast, exclusive legal positivism understands – as Bulygin argues – that in order to identify the relevance thesis of a system it is necessary to take into account only what the legislator (the authority) established. It follows from this thesis that interpretative conventions must be taken into account only in so far as they serve to capture the content of what, explicitly or implicitly, the legislator in fact wanted or attempted to legislate." (My own translation.)

22 Moreso & Vilajosana 2004.

23 This conclusion seems sound, since in the same paper in which Bayón characterizes interpretative conventions (Bayón 2002:73), he also criticizes inclusive legal positivism as an unstable position, which either collapses into iusnaturalism or exclusive legal positivism.

24 This is the path followed in Orunesu 2007.

25 Redondo 2018: 154.

26 Redondo 2018: 151. Here it is not clear whether in using "conventions" Redondo means the technical sense coined by Lewis -i.e., a regularity of conduct that is followed or preferred by agents because others also follow or prefer it to solve a coordination problem (Lewis 1969) - or she is simply speaking in a general sense, using "conventions" to indicate that they are identified empirically. In any case, it is not clear whether Lewis's notion of convention applies to law, as a good way to characterize the rule of recognition of a legal system. For a discussion on this, see Vilajosana 2010.

27 It could be asked: what exactly would it mean for an interpretative convention to "refer to morals"? To speak of "rules that refer to morals" is intelligible. This is the case when an expressly legal rule contains, for example, the clause "according to morals and good customs". It is another thing to assert that when a legal rule contains evaluative terms (such as "cruel punishment") our interpretative conventions on them refer to morals. Of course, the content of legal and moral duties (however “moral” is understood) usually overlap, are coextensive. But this does not mean that the interpretative conventions of legal practice refer to morals, even less that the content they determine become legal because they are moral.

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References

Electronic reference

María Gabriela Scataglini, “Interpretative conventions and legal positivism Revus [Online], 48 | 2022, Online since 08 June 2022, connection on 01 December 2023. URL: http://journals.openedition.org/revus/8335; DOI: https://doi.org/10.4000/revus.8335

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About the author

María Gabriela Scataglini

PhD in Philosophy of law, University of Buenos Aires (Argentina).

Address: Amenábar 3546 - Ciudad Autónoma de Buenos Aires (1429) - Argentina

E-mail: g_scataglini [at] hotmail.com

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The text only may be used under licence CC BY-SA 4.0. All other elements (illustrations, imported files) are “All rights reserved”, unless otherwise stated.

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