Legal Norms and Convention Theory: Justification, Evaluation, and Realization of Law

Joëlle Affichard, Antoine Lyon-Caen & Laurent Thévenot (2023)

In Rainer Diaz-Bone & Guillemette de Larquier (eds.), Handbook of economics and sociology of conventions. Cham: Springer, Online first

Abstract. The pragmatist approach to conventions places them in the dynamics of coordinated action and provides an understanding of law in action. Legal norms should also be considered in action. The pragmatic realism of law and normativity presented in this chapter emphasizes the form-shaping of the environment that is required for a rule or norm to have effect. It addresses jurists’ critical insight into the reductive concept of rule application. The convention theory also makes it possible to locate law within an environment of multiple modes of normativity. They are supported by philosophical and moral principles, statistical formats, economic standards, or other normative forms that are engaged in the justification, evaluation, and realization of law.
Conducted over a long period of time (more than 30 years) and involving several generations of researchers, the close collaboration of jurists with sociologists, economists, and statisticians familiarized with convention theory has prevented the usual attempts to reduce one discipline to the other. An extended framework including various modes of normativity has avoided the oppositions between law and non-law, legal norm and social norm, formal and informal, hard and soft law.
Three levels of legal action are addressed: the level of fundamental principles or rights and, more broadly, of conventions claiming the greatest legitimacy; the intermediate level of the framing of law by various methods and techniques of evaluation; and finally, the level of the realization of law, when judgments are informed by practical and material modes of normativity that prepare a convenient environment for the action of law.

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