This is an essay on the conventional foundations of law. The paper consists of three main arguments: first, that between HLA 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 paper 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.
Date of this Version
Andrei Marmor, "How Law is Like Chess" (April 2006). University of Southern California Legal Studies Working Paper Series. Working Paper 10.