Über die Autorin bzw. den Autor

Andrei Marmor is the Maurice Jones Jr. Professor of Law and a professor of philosophy at the University of Southern California. His books include "Law in the Age of Pluralism and Interpretation and Legal Theory".

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"This book will be of great philosophical interest, especially to social and legal philosophers. Marmor's view is original and represents an important alternative to the dominant (Lewisian) conception of social conventions. He sketches his theory on a large canvas and applies it to several different areas of social life. He writes with admirable clarity, directness, and simplicity."--Gerald Postema, University of North Carolina, Chapel Hill

"This book develops and applies a general theory of social conventions, then employs it to answer questions about the role of convention in language, morality, and law. Marmor's conclusions are noteworthy not only for the light they shed on the conventions found in these areas, but also for the claim that some linguistic and moral phenomena deemed conventional by other writers do not, in fact, have this status."--Christopher McMahon, University of California, Santa Barbar

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"This book will be of great philosophical interest, especially to social and legal philosophers. Marmor's view is original and represents an important alternative to the dominant (Lewisian) conception of social conventions. He sketches his theory on a large canvas and applies it to several different areas of social life. He writes with admirable clarity, directness, and simplicity."--Gerald Postema, University of North Carolina, Chapel Hill

"This book develops and applies a general theory of social conventions, then employs it to answer questions about the role of convention in language, morality, and law. Marmor's conclusions are noteworthy not only for the light they shed on the conventions found in these areas, but also for the claim that some linguistic and moral phenomena deemed conventional by other writers do not, in fact, have this status."--Christopher McMahon, University of California, Santa Barbar

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SOCIAL CONVENTIONS

PRINCETON UNIVERSITY PRESS

Contents

Acknowledgments............................................................viiPreface....................................................................ixChapter One A First Look at the Nature of Conventions.....................1Chapter Two Constitutive Conventions......................................31Chapter Three Deep Conventions............................................58Chapter Four Conventions of Language: Semantics...........................79Chapter Five Conventions of Language: Pragmatics..........................106Chapter Six The Morality of Conventions...................................131Chapter Seven The Conventional Foundations of Law.........................155Bibliography...............................................................177Index......................................................................183

Chapter One

I want to begin with an attempt to define what social conventions are. I will start with some intuitive ideas on what seems special about conventional norms, and try to define those features as precisely as possible. If this tack leads us to a single explanation of the point, or function, of conventions in our lives, so be it. But we should not assume in advance that a single explanation is available, and we should certainly not predetermine what it is.

First, conventional rules are, in a specific sense, arbitrary. Roughly, if a rule is a convention, we should be able to point to an alternative rule we could have followed to achieve basically the same purpose. Second, conventional rules normally lose their point if they are not actually followed in the relevant community. The reasons for following a rule that is conventional are tied to the fact that others (in the relevant population) follow it too. To give one familiar example, consider the convention of saying "Hello" when responding to a telephone call. Both features are manifest in this example. The purpose of the convention is to have a recognizable expression that indicates to the caller that someone has answered the phone. But of course, using the particular expression "Hello" is arbitrary; any other similar expression would serve just as well-that is, as long as the expression I use is one that others use too. If the point of the convention is to have an expression that can be quickly recognized, then people have a reason to follow the norm, that is, use the expression, that others in the community follow as well. If, for some reason, people no longer use this expression, I no longer have a reason to use it either.

In fact, both of these intuitive features of conventional rules derive from a single, though complex, feature that I will call "conventionality," defined as follows:

A rule, R, is conventional, if and only if all the following conditions obtain:

1. There is a group of people, a population, P, that normally follow R in circumstances C.

2. There is a reason, or a combination of reasons, call it A, for members of P to follow R in circumstances C.

3. There is at least one other potential rule, S, that if members of P had actually followed in circumstances C, then a would have been a sufficient reason for members of P to follow S instead of R in circumstances C, and at least partly because S is the rule generally followed instead of R. The rules R and S are such that it is impossible (or pointless) to comply with both of them concomitantly in circumstances C.

In this chapter I will explain and defend this definition, showing how it applies to the variety of conventions we are familiar with. I will then present David Lewis's theory of social conventions, arguing that it successfully explains some cases, but that it fails in many others. Finally, I will consider Margaret Gilbert's alternative account of conventions, arguing that it raises more questions than it answers. An alternative to Lewis's theory or, more precisely, a supplement to it, will be presented in the next chapter.

Definition

Let us take up the details of the definition.

1. There is a group of people, a population, P, that normally follow R in circumstances C.

This condition indicates that conventions are social rules: A convention is a rule that is, by and large, followed by a population. Not all rules have to meet this condition. People can formulate rules of action and regard them as binding even if nobody is actually following those rules. Conventions, however, must be practiced, that is, actually followed, by a population in order to exist. Furthermore, I use the term "followed" advisedly. In many contexts people's behavior can conform to a rule without the rule being followed, as such. A rule is followed when it is regarded as binding. Conventions, I assume, must be regarded as binding by the relevant population. To say that a certain behavior is conventional is to assume that, at least upon reflection, people would say that they behave in a certain way because the relevant conduct is required by the convention.

Margaret Gilbert raised some doubts about this, relying on the following counterexample: suppose that it has been a convention in a certain community that people should send thank-you notes after being invited to dinner parties. As it happens, conformity with this convention has dwindled and most people no longer abide by it. Either they tend to express their gratitude in some other way, or not at all. "Does this mean that there is no longer a convention [to send thank-you notes]?" Gilbert asks. "The present author has no such clear sense," she replies. The lack of a clear sense about such cases is understandable. It often happens that a conventional rule gradually ceases to be practiced, and at some point it might become impossible to determine whether the convention still exists or not. In other words, the idea of a practice is rather vague, and borderline cases are not uncommon. As with most distinctions, however, the vagueness of the concepts constituting the distinction does not entail that the distinction itself is problematic. The importance of this first condition pertains to the unique structure of reasons for following rules that are conventional. It is a unique feature of such reasons that they are closely tied to the fact that others generally comply with the rule. This will become clearer as we complete the explanation. Suffice it to say at this point that Gilbert's example is not a counterexample to condition 1; what we face here is precisely what is described, namely, a convention that has dwindled. There used to be such a conventional practice, but now it is no longer clear that there is one. The essential point remains that conventional rules are social rules and that there must be a community that by and large follows the rule for it to be conventional.

Similar considerations apply to the question of what constitutes a community that practices a certain convention. Some conventions are practiced almost universally; others are much more parochial. However, a rule followed by just a few people is typically not a convention, even if the other conditions obtain. As social rules, conventions must be practiced by some significant number of people. Numbers matter here because in small numbers the relevant agents can create, modify, or abolish the rules at will, by simple agreements between them. As David Lewis was right to observe, conventions typically emerge as an alternative to agreements, precisely in those cases where agreements are difficult to obtain because of the large number of agents involved. (More on this below.) But again, the concept of a population or a community is vague, and borderline cases are bound to exist.

2. There is a reason, or a combination of reasons, call it A, for members of P to follow R in circumstances C.

The second condition requires three clarifications. First, what is a reason for following a rule? I take it that reasons for action are facts that count in favor (or against) doing (or not doing) something. Thus reasons for action are closely tied with the idea of value. A reason to [pi] typically derives from the fact that [pi]-ing is good, valuable, or serves some worthy end. Some philosophers claim that it is the other way around: to say of something that it is valuable is to say that it has certain properties that provide reasons for action. Either way, reasons are closely related to values or goodness. A reason to follow a rule necessarily assumes (or, is suggested by the assumption) that following the rule is valuable under the circumstances, that it serves some purpose or point, that it is good in some respect (not necessarily moral, of course).

Second, it is not part of this condition of conventionality that members of P must be aware of the reason, A, to follow R. People may follow conventional rules for various misconceived reasons or, in fact, for no reason that is apparent to them at all. The conventionality of a rule does not depend on the subjective conception of the reasons for following the rule by those who follow it. As an example, consider this: there are some Orthodox Jewish communities who believe that Hebrew is a holy language descended directly from God. In fact, they only speak Hebrew in religious contexts, and use Yiddish for everyday life. Surely Hebrew remains conventional (to the extent that it is, of course), even when spoken by those orthodox Jews. The fact that they misconceive the reasons for following the rules does not prove the contrary. Reasons for following a convention do not have to be transparent.

Similar considerations apply to the question of whether people have to know that the rule they follow is a convention or not. Lewis suggested that at least in one crucial sense, the answer is yes. He claimed that, for the rule to be conventional, the arbitrary nature of the rule must be common knowledge in the relevant population. Tyler Burge has rightly argued that this is wrong and no such condition should form part of the definition. People can be simply mistaken about the conventional nature of the rules they follow. To mention one of Burge's examples, he asks us to imagine a small, completely isolated linguistic community, none of whose members ever heard anyone speaking a different language. "Such a community would not know-or perhaps even have reason to believe-that there are humanly possible alternatives to speaking their language.... Yet we have no inclination to deny that their language is conventional. they are simply wrong about the nature of their activities." Notably, such mistakes can go both ways; for example, some people believe that all moral norms are social conventions. They may be quite wrong.

There is, really, nothing surprising about the fact that conventionality is often opaque. The conventionality of various domains, or types of norms, could not be controversial had it been the case that conventionality is necessarily transparent. However, the fact that people need not be aware of the correct reasons for following a convention, or even of the fact that it is a conventional rule they follow, does not entail that there are no epistemic constraints that apply to conventionality of norms. The idea of following a rule, in itself, is a rather complex condition. It normally entails that the agent regards the rule as binding under the circumstances, which would normally entail that the agent must be aware of the fact that he or she is following a rule. It may be tempting to think that people can act in ways which conform to a convention without it being the case that in this they follow a rule. According to this line of thought, then, conformity to a convention is not always a matter of following a rule. There is, I think, some truth in this, but only in a very limited sense. We often follow norms without being self-consciously aware of the fact that we do so. In reading these words you follow numerous norms of the English language (notation of symbols, spelling, meaning, syntax, etc.). It is not something you do in a self-conscious way; you don't tell yourself that the symbol "A" stands for a particular sound, that "B" stands for a different sound, and so on. Following a rule does not require that the agent be self-consciously aware of the fact that he or she follows the rule. But in using these symbols in reading or writing, we do follow rules, and, generally speaking, we know that we do. We normally become aware of the fact that we follow a rule when our attention is drawn to it by some particular need, say, when there is a question about what the rule is, or how to interpret it under some doubtful circumstances. None of this proves, of course, that conventions are necessarily rules. I will deal with this question shortly. The point here is that to the extent that conventions are rules, and to the extent that conformity to a convention is an instance of following a norm, there is always the potential of awareness that in complying with a convention one follows a rule. But again, what the reasons for the rule are, or what kind of rule it is, is not something that the agents must be aware of.

The assumption that there must be a reason for following a rule that is a convention requires another clarification. On the one hand, it is normally the case that people follow rules for reasons. On the other hand, we must make room for the possibility that a convention is silly or just plain wrong. There would seem to be two ways to account for this. In many cases it would be appropriate to say that there is a reason to follow a convention, R, but there are also reasons not to follow R, and perhaps the latter ought to prevail. A reason to follow a rule does not entail an all-things-considered judgment that one ought to follow it. Second, it might be the case that the reason to follow the convention is just not a good reason. But this is problematic: according to a plausible view about the nature of reasons, there is no such thing as a bad reason (just as there is no such thing as a bad value). Either there is a reason, or there isn't. If this is correct (and I think that it is), then we cannot say that there is a reason to follow a convention that is just a bad reason; we would have to say that there is a reason, perhaps a very weak one, that is somehow immediately defeated by countervailing considerations.

The third condition explains the sense in which conventional rules are arbitrary and, as we shall see, compliance dependent:

3. There is at least one other potential rule, S, that if members of P had actually followed in circumstances C, then a would have been a sufficient reason for members of P to follow S instead of R in circumstances C, and at least partly because S is the rule generally followed instead of R. The rules R and S are such that it is impossible (or pointless) to comply with both of them concomitantly in circumstances C.

As David Lewis explained in his account of social conventions, it is crucial to note that arbitrariness (thus defined) should not be confused with indifference. This condition does not entail that people who follow the convention ought to be indifferent about the choice between R and S. The rule is arbitrary, in the requisite sense, even if people do have a reason to prefer one over the other, but only as long as the reason to prefer one of the potential rules is not stronger than the reason to follow the rule that is actually followed by others. A typical game theory model of this is the so-called battle of the sexes game (which Lewis calls an imperfect coordination problem). Assume two agents, X and Y, both having a dominant preference to act in concert with the other; however, X prefers option P over Q, and Y prefers option Q over P. As long as their dominant preference is to act in concert with each other (namely, if Y opts for Q, X would rather Q as well, even though he would have preferred P; and same goes for Y), the condition of arbitrariness as defined above is satisfied. Consider, for example, the case of a greeting convention. Suppose that there is a reason to greet acquaintances in some conventional manner. Now let us assume, for the sake of simplicity, that there are only two possible alternatives: we can either greet each other by shaking hands, or else by just nodding our head. Presumably, some people would prefer the hand-shaking option, while others (perhaps because they are not so keen on physical contact) would prefer nodding. The point is that we need not assume indifference. As long as the reason to act in concert with others is stronger than people's preference for one of the options, whichever rule evolves as the common practice is likely to be followed. And it would be arbitrary in the sense defined here.

In a sense, then, arbitrariness admits of degrees. We could say that a rule is completely arbitrary if the reason to follow it entails complete indifference between the ruler R, that people do follow, and its alternative(s), S, that they could have followed instead, achieving the same purpose. Then a rule becomes less and less arbitrary as we move away from complete indifference, up to the point at which the reason to follow the rule that is actually followed by others is just slightly stronger than the reason to prefer a different alternative.

(Continues...)

Excerpted from SOCIAL CONVENTIONSby Andrei Marmor Copyright © 2009 by Princeton University Press. Excerpted by permission.
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