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Law in the Age of Pluralism$
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Andrei Marmor

Print publication date: 2007

Print ISBN-13: 9780195338478

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780195338478.001.0001

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How Law Is Like Chess

How Law Is Like Chess

Chapter:
(p.153) CHAPTER 6 How Law Is Like Chess
Source:
Law in the Age of Pluralism
Author(s):

Andrei Marmor (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195338478.003.0006

This chapter focuses on the conventional foundations of law. It consists of three main arguments. First, that between Hart's view on the rules of recognition and Kelsen's view on the basic norm, Hart's account is more plausible. Second, it argues that the rules of recognition are not coordination conventions, as some commentators have claimed, but conventions of a different kind. Finally, the chapter draws a distinction between deep and surface conventions, arguing that there are deep conventions determining what law is, and surface conventions of recognition determining what counts as law in a particular community. This distinction between deep and surface conventions is employed to solve some of the puzzles about the conventional foundations of law.

Keywords:   conventional foundations of law, Hart, Kelson, conventions

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