Specifying Conventions: The Third‐Order Problem of Knowledge

Randy E. Barnett

in The Structure of Liberty

Published in print February 2000 | ISBN: 9780198297291
Published online November 2003 | e-ISBN: 9780191598777 | DOI:
Specifying Conventions: The Third‐Order Problem of Knowledge

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Though the abstract background rights that define justice are underdeterminate in that more than one set of specific action‐guiding precepts can often satisfy their theoretical demands, these rights can still provide a basis for criticizing specific precepts that are discovered in some other way. Specific action guiding rules of law cannot ordinarily be deduced from abstract rights. Instead, specific conventions to guide conduct can evolve in a common‐law process that has certain characteristics enabling judges (1) to obtain information about the complexities of practice and (2) to formulate rules to decide future cases in a manner that is both consistent with each other and with underlying principles of justice. To ensure a link between the common‐law process and the liberal conception of justice requires both an internal and external link. Apparent conflicts between justice and the rule of law can be resolved in a variety of ways, but when the conflict is clear and demonstrable, justice—which addresses the first‐order problem of knowledge (and also problems of interest)—should take priority over the rule of law.

Keywords: common law; conflict; consistency; conventions; justice; precepts; rights; rule of law; rules; underdeterminacy

Chapter.  12132 words. 

Subjects: Political Theory

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