Rules, Conventionalism and Normativity: Some Remarks Starting from Hart

Abstract

The paper deals with the “conventionalist turn” in legal positivism 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) because it offers an explanation of legal normativity partly different vis-à-vis previous ones and (b) because it tries to preserve the autonomy of legal obligation from moral obligation and coercion, respectively. Here I will only focus on legal conventionalism as sketched out by Hart in the Postscript. Indeed, Hart’s conventionalism comes up against problems which to some extent also affect 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 into which the previous ones fall but, paraphrasing Hart, the outcome is distortion as...