Law and Philosophy Library

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1 THE OPPOSITE MIRRORS

2 Law and Philosophy Library VOLUME22 Managing Editors ALAN MABE, Department of Philosophy, Florida State University, Tallahassee, Florida 32306, U.S.A. AULIS AARNIO, Research Institute for Social Sciences, UniversityofTampere, Box607, SF Tampere, Finland Editorial Advisory Board ROBERT ALEXY, Lehrstuhlfiir Offentliches Recht und Rechtsphilosophie, Christian Albrechts-Universitii.t, Kiel GEORGE P. FLETCHER, School of Law, Columbia University ERNESTO GARZcN V ALOES, Institut fur Politikwissenschaft, Johannes Gutenberg Universitii.t Mainz JOHN KLEINIG, Department of Law, Police Science and Criminal Justice Administration, John Jay College of Criminal Justice, City University of New York NICOLA LACEY, New College, Oxford University NEIL MacCORMICK, Centre for Criminology and the Social and Philosophical Study of Law, Faculty of Law, University of Edinburgh ALEKSANDER PECZENIK, Juridiska Institutionen, University of Lund NIGEL SIMMONDS, Corpus Christi College, Cambridge University ROBERTS. SUMMERS, School of Law, Cornell University ALICE ERH-SOON TAY, Faculty of Law, University of Sydney ERNEST J. WEINRIB, Faculty of Law, University of Toronto CARL WELLMAN, Department of Philosophy, Washington University The titles published in this series are listed at the end of this volume.

3 EERIK LAGERSPETZ University of Jyvaskylii, Finland and University ofturku, Finland THE OPPOSITE MIRRORS An Essay on the Conventionalist Theory of Institutions SPRINGER-SCIENCE+BUSINESS l\1edia, B.V.

4 A C.I.P. Catalogue record for this book is available from the Library of Congress. ISBN DOI / ISBN (ebook) Printed on acid-free paper All Rights Reserved 1995 Springer Science+ Business Media Dordrecht Originally published by Kluwer Academic Publishers in 1995 Softcover reprint of the hardcover 1st edition 1995 No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owner.

5 ALEENA toujours pour la premiere fois

6 TABLE OF CONTENTS ACKNOWLEDGEMENTS ix 1. METHODOLOGICAL REMARKS Conventional facts Mutual beliefs Methodological individualism and non-individualism GAME THEORY AND MUTUAL BELIEFS The role of games The unpredictability of human action Prisoners' Dilemma Games and conventions AN EXAMPLE: MONEY THE CONCEPT OF AUTHORITY Authority and legitimacy Authority and power The conventionalist notion of authority AUTHORITY AND COORDINATION Simon's theory Authority and the problem of "the balance of reasons" Arguments against the conventionalist theory of authority 93 Vll

7 viii 6. THE FOUNDATIONS OF LEGAL SYSTEMS 6.1. Hobbes' problem 6.2. Hobbes' logic and Natural Law theories 6.3. The positivistic theories 6.4. Ross and the problem of self-referring norms CONVENTIONALISM AND law 7.1. Hart's theory of human nature 7.2. The nature of obligation 7.3. A note on "obligation" 7.4. Primary and secondary rules 7.5. Meta-rules EFFICACY AND OBLIGATION 8.1. Efficacy 8.2. What is accepted? 8.3. Obligation and the functionalist claim THE ROLE OF FORCE 9.1. The State and force 9.2. The Zero-sum position 9.3. The Consensualist position 9.4. The Prisoners' Dilemma position 9.5. Conventionalism and force CONCLUSIONS BIBLIOGRAPHY INDEX OF.NAMES

8 ACKNOWLEDGEMENTS This book is about institutions, about their existence and about the roles they play in our lives. Thus it is a book on the metaphysics of certain elements of our social world. Legal institutions occupy a central place in it, but it also contains chapters which are intended to be relevant for economists, sociologists, political scientists, and for students of human societies in general. It is, however, written by a professional philosopher who has only a limited and fragemented knowledge of these disciplines. My only excuse for these digressions is that my worthy colleagues in the departments of Social Sciences and of Law have no inhibitions about doing philosophy when they see a need for it. I have greatly benefited from their efforts, and, by this book, I would like to reciprocate their contributions. This work has not grown as a tree grows. Rather it has developed and spread like ivy: different branches have grown separately, yet ultimately, I hope, to form a kind of unity. An earlier version appeared in Acta Philosophica Fennica, published by the Finnish Philosophical Society, and was presented as a Ph.D. thesis in the University of Turku. I have expanded some chapters, and made minor corrections in all, but the basic structure and the important arguments are the same. After completing this new version, I became acquainted with Dick Ruiter's new book Institutional Legal Facts (Dordrecht: Kluwer 1993). Ruiter's book is clearly relevant for my project, and I should have taken it into account. Finally, I decided not to comment it, hoping that I shall have an opportunity to discuss on Ruiter's important theory in some future work. Numerous people have helped me, in various ways. My teachers, Juhani Pietarinen, Risto Hilpinen and Hannu Nurmi have taught me most of what I know about philosophy. They have also encouraged in the moments of hesitation. The year I spent at Oxford was decisive for the development of this work. I was fortunate in having an excellent supervisor, Joseph Raz, who is not only a good philosopher, but also a most lovable person. Without my friends, I would never have written this work. Of those many people who have been important for me, I shall single out only three: Simo Vihjanen, Matti Wiberg and Jari Talja. From Oxford, I want to mention the people in the little informal discussion group who frequented the Ryle Room. Leslie Green acted as the examiner of my thesis. He performed his ix

9 X role in a most judicious way, and his comments were extremely helpful. Govert den Hartogh is the man who has always understood what I have tried to say and has, then, explained it to me. I have profited from the comments to the first version made by Aulis Aamio, Raimo Tuomela, Ilkka Niiniluoto and by many others. Mikko Heinio, the musicologist, and Heikki Patomilld, the specialist on International Relations, have borrowed some of my concepts and applied them in a critical way to new areas. None of these people shares all my ideas. Of course, all the mistakes, etc. etc. George Maude corrected my English, with great patience. He also made some useful substantial remarks on the manuscript. Valtteri Arstila prepared the Index and provided technical assistance. I want to express my deep gratitude to all. There is one person left, one who has helped me through this sometimes difficult process of writing, and with whom I have started a project much more important and challenging than this book. To her, I dedicated the first version. So, there is at least one line in that book which needs no revision.