Legal Definitions - conventionalism

Conventionalism is a theory in legal philosophy that suggests law is fundamentally about respecting and enforcing the established legal and social rules of a community. From this perspective, the law is what has been conventionally agreed upon and recognized through institutional practice.

Key aspects of conventionalism include:

• Respecting Established Rules: Judges and legal practitioners are primarily tasked with identifying and applying the existing, recognized legal rules and conventions. They are expected to treat as law what the community's established practices and institutions stipulate as law.
• Following, Not Creating: This view emphasizes that judges should "follow the law" rather than "make new law." Their role is to interpret and apply the existing framework, not to introduce new legal principles based on their personal moral judgments or policy preferences.
• Limits of Law: Conventionalism also implies that if there is no established convention or clear rule governing a particular issue, then there might be no "law" on that matter. In such cases, there isn't a pre-existing legal right or obligation to be discovered or enforced.

Here are some examples illustrating conventionalism:

• Example 1: Enforcing a Standard Contract Clause

  Imagine a dispute over a commercial contract that includes a standard "arbitration clause," which mandates that any disagreements must be resolved through arbitration rather than in court. One party attempts to sue the other directly in court, arguing that arbitration would be unfair or inconvenient in their specific situation.

  How it illustrates conventionalism: A judge operating under conventionalism would likely dismiss the lawsuit and compel the parties to arbitration. The arbitration clause is a widely accepted and legally recognized convention in contract law. The judge would prioritize enforcing this established legal rule, even if they personally felt that a court trial might offer a "better" or "fairer" outcome in this particular instance. Their duty is to uphold the agreed-upon legal convention.

• Example 2: Adhering to a Statute of Limitations

  A person suffers an injury and decides to sue the responsible party, but they file their lawsuit six months after the state's three-year statute of limitations for such claims has expired. The injured party argues that they were unaware of the deadline and that their claim is otherwise very strong and just.

  How it illustrates conventionalism: A conventionalist judge would almost certainly dismiss the case. The statute of limitations is a clear, established legal convention designed to ensure timely legal action and provide finality. Despite the potential merits of the claim or the plaintiff's personal hardship, the judge's role is to apply the existing, conventional rule regarding the filing deadline, not to create an exception based on individual circumstances or perceived fairness.

• Example 3: Following Binding Precedent (Stare Decisis)

  A state's highest court has previously ruled that a specific type of evidence is inadmissible in criminal trials. Years later, a lower court judge presides over a similar criminal case where the prosecution attempts to introduce the exact same type of evidence. The lower court judge personally believes the highest court's prior ruling was misguided and that the evidence should be allowed.

  How it illustrates conventionalism: Under conventionalism, the lower court judge would be bound by the principle of stare decisis (the legal convention of following precedent). Even if they disagree with the higher court's reasoning, their duty is to apply the established legal rule set by the higher court. They must respect this convention of judicial hierarchy and precedent, rather than substituting their own legal interpretation or creating new law.