First, constitutive conventions allegedly create social practices in the absence of pre-existing coordination problems, and as such, have purposes autonomous from conventions that solve coordination problems. Contrary to Marmor, I argue that constitutive conventions are indispensable components of the conventional mechanisms that solve coordination problems. Marmor also argues that constitutive convention s must precede coordination conventions, since they create the institutional agents whose actions are to be coordinated.
I argue that constitutive conventions do not necessarily precede coordination conventions, either logically or temporally. Finally, I argue that constitutive conventions in law are not autonomous conventions, but indispensable components of wider conventions that solve coordination problems. Constitutive conventions produce long-term mental representations of statuses and powers held by objects and persons, which can be combined to create other, multi-layered mental representations.
Konstitutivne konvencije v pravu in problem njihove primarnosti. Marmorjev pojem konstitutivne konvencije temelji na dvojni predpostavki primarnosti. Marmor contended that some of them could not have done so, as there was no coordination problem to be solved before they came into being.
First, he argues that constitutive convention s create social practices in the absence of pre-existing coordination problems, and as such, have purposes independent from conventions that solve coordination problems. Chess, like other games, is detached from life. It is a training activity that helps develop the intellectual prowess required to maintain the complex mental representations involved in, inter alia , formulating and being coordinated by plans. Law is also based on complex mental representations of future states of affairs.
Unlike chess, however, law impacts real life and primarily serves to coordinate human interactions in the real world. Chess is therefore a flawed paradigm for law. Applied to law, this means that legal constitutive convention s are pre-requisites for other legal conventions and rules: before there can be any talk of a convention that governs the actions of officials e.
