Marcin Matczak (Warsaw University - Faculty of Law and Public Administration) has posted Ruth G. Millikan's Conventionalism and Law (Legal Theory , Volume 28 , Issue 2 , June 2022 , pp. 146 - 178) on SSRN. Here is the abstract:
Conventionalism once seemed an attractive way to justify the viability of the positivistic social thesis. Subsequent criticism, however, has significantly lessened its attractiveness. This paper attempts to revive jurisprudential interest in conventionalism by claiming that positivists would profit more from the conventionalism of Ruth G. Millikan than that of David Lewis.
Three arguments are proffered to support this contention. First, Millikan’s conventionalism is not vulnerable to the major criticism leveled at conventionalism, viz its compliance-dependence (i.e., the main reason to follow a convention is that other social actors do so), as this is not its defining feature. Second, Millikanian conventionalism retains conventionalism’s ability to explain how law emerges from social prac- tices while avoiding the main disadvantage of Lewisian conventionalism, viz its inability to explain the normativity and contestability of law. Third, Millikan’s conventionalism can more effectively repel Dworkin’s and Greenberg’s assaults on legal positivism than its Lewisian counterpart.
Highly recommended.
