Abstract

This dissertation explores the implications of conventionalism for legal theory. Using the later work of Ludwig Wittgenstein, the dissertation examines whether the moderate conventionalism of H. L. A. Hart and Ronald Dworkin can support the key distinction between law and politics, or whether any conventionalism must reduce all legal decisionmaking to rationalizations of power. It argues that Wittgenstein's analysis of conventionalism provides insight into the role judicial interpretation legitimately plays in legal decisionmaking. In particular, the dissertation shows how Wittgenstein's investigation of certainty and rule following reveals the complex background of social practices necessary to validate statements of certainty and to apply individual rules correctly. ;Wittgenstein's discussion of the importance of social context to questions of meaning and interpretation serves as the basis for a critique of H. L. A. Hart's legal positivism in The Concept of Law and Ronald Dworkin's interpretive theory of law in Law's Empire. Based on these critiques, the dissertation constructs a pragmatist legal theory which accepts a conventionalism more radical than either Hart's or Dworkin's, yet does not entail nihilism. Instead, this pragmatic construction offers a coherent description of legal decisionmaking and the legitimate sources of legal norms