사회적 관행 이론의 세 모델: 비판적 고찰

As well as in our daily life, conventions play a significant role in the specific context of legal discourse, in the light of which serious inquiry into convention per se cannot be said to have been sufficiently done in the field of legal philosophy. With this in mind, this article first overviews and critically examines the three major theoretical models that has been advanced on social convention: (a) ‘Coordination Solution Model’ by Hume and Lewis, which defines conventions as a solution to the coordination problem; (b) ‘Alternative Model’ by Gilbert, Miller, Millikan, which is based on a denial of Lewis’ fundamental premises; and (c) ‘Multi-Layered Alternative Convention Model’ by Marmor, which basically accepts the ‘coordination convention’ concept but provides a new perspective on the concept of convention itself to overcome limitation of Lewis’ theory. Though the above models explain the concept and nature of convention with different theoretical backgrounds and with respective merits, they are found to have some limitations in common: (i) as general theory on social conventions, and (ii) as ‘legal’ theory. Accordingly, the author stresses the necessity to establish a new model defining the concept of ‘legal convention’, acknowledging the dynamic character of conventions (‘dynamic approach’) and the peculiarity of ‘legal’ discourse. The new ‘Legal Convention Theory’ should also be able to elucidate the normative features of genuine social conventions in depth. The critical study in this article on the above existing models seeks to provide a theoretical foundation for the actual development of the new convention theory.