Legal Conventionalism Revisited: How Can Legal Normativity Come Out Of Nothing?

The essential nature of law is its normativity,and the explanation of legal normativity must balance between the dimension of fact and the dimension of reason.On the one hand,law is created by human beings;on the other hand,law can give us reasons for action.It makes the answering of the problem of legal normativity focus on sources of normativity,that is,in virtue of what,the fact can give reasons?The request of sources of normativity leads us to a "chicken-egg" problem.Is there a legal authority first,or is there a power-conferring norm first?This chain of normativity must have a starting point,which would be the ultimate standard of recognition of law.The standard of recognition of law is created by human beings,but is not enacted by anyone,so we have to explain how its normativity can come out of nothing.Hart’s social rule theory got the internal dimension of law,and he tried to explain legal normativity via agents’attitudes of acceptance.But this approach cannot explain why the reason given by law is obligatory,or why we have any reason to accept social rules neither.In that case,positivists had to turn from social rules to legal conventionalism.The conventionalism based on the coordinative conventions does not fit the practice of law,and cannot explain the obligatory feature of legal reason neither,facing serious difficulties.The conventionalism based on the constitutive conventions shows us which social fact without enactment the ground of law is,and how law’s special normativity can be possible to some extents,so it can be seen as the best version of conventionalism for now.However,if we notice the theory of reasons in practical philosophy,we will find out that constitutive conventions may still not be the genuine source of legal normativity.The popular objectivism about reasons claims that reasons must come from values,which contradicts against the theory of reasons in conventionalism.According to conventionalism,law gives us content-independent reasons,which is irrelevant to values of contents in their sources.Meanwhile,reasons given by law cannot be formal,conditional or instrumental,so the special reason of law seems impossible in the viewpoint of objectivism.In that case,the hybrid voluntarism developed by Ruth Chang may help legal conventionalism to reduce the tension in reasons.Chang claims that rational agents have normative powers,and we can exercise the power to create reasons up-to-us.In order to explain how normative powers can be possible,the normative approach based on objectivism all failed,so the right way may be a whole new metaphysical approach,which claims that our will can be part of sources of normativity so that gives reasons directly.When we exercise our normative powers,we commit some considerations be our reasons,and so that create content-independent reasons for ourselves.In contrast with objectivism and subjectivism about reasons,the hybrid voluntarism has stronger explanatory powers to practices via including our will into sources of normativity.If we accept the hybrid voluntarism,then the internal tension of legal conventionalism in reasons may be reduced.However,there is a gap between the will-based reason developed by Chang,and reasons given by law or convention.Chang claims that the will-based reason is a private reason,while reasons given by law must be public reasons.But the gap can be erased.Besides individual practices,there are also joint,or social practices in society,and exercising normative powers jointly may create public reasons for action.And although reasons created by individuals are private,they are still recognizable and intelligible to others,which makes them public in a low degree.If the will-based public reason is possible,then our acceptances to conventions can be seen as jointly committing conventions be our reasons,so that we exercise our normative powers creating content-independent reasons.Legal conventionalism’s explanation of how legal normativity can come out of nothing is defended:reasons given by law come from our exercising normative power essentially,that is,committing conventions be reasons and creating will-based reasons.