법, 규범성, 그리고 규칙 준수의 동기에 대한 관행론적 이해

Leslie Green criticized conventionalism for its unsuccessful explaining of the fundamental phenomena of law such as normativity, authority, and obedience to legal rules. Law functions as an exclusionary reason on human conducts, and overwhelms all the other prudential reasons. The standard legal conventionalism, whose basic features are borrowed from David Lewis’ convention theory, refers to one of the prudential reasons, the self-interest, in explaining of why people are following legal rules. But Green’s criticism is not relevant all sorts of conventionalism, especially not to Hume’s. Hume’s conventionalism, which is mainly concerning the establishment of property rules, comprises two parts. One is a descriptive research of under what conditions human society comes to be equipped by property rule convention, and the other part is a study on why people judge the rule following acts to be just, and on under what sense of duty they accommodate their conducts to the rules. This paper tries to reformulate Hume’s conventionalism through the contemporary game theory conceptual tools such as Schelling points, and to show that Humean conventional rule following acts are not the merely externally observable ones, since they are conducted from the internal viewpoint, i.e. the sense of duty.