5. A Last Word on Conventions and Social Contexts

Throughout Section 4, I aimed to show that conventions are unnecessary for the justifications of some of the central norms of ownership, in particular the power to transfer. Let me say now what I think prompts the conventionalist’s thoughts in this neck of the normative woods. It is a confusion between convention and social context, with all the local, cultural, and historical dimensions that social context makes us notice. It roughly matches Hart’s confusion of, and thus his failure to distinguish between, rule-governed practices and cases where people merely act in accordance with generally accepted reasons.46 That a way of behaving necessarily arises in a social context and does so because people respond to reasons to which they are all, in general, capable of responding, does not mean that such a way of behaving is conventional. Such behaviours, akin to the behaviour of tool-use, may become conventional, but are not inherently a matter of adopting conventions. The conventionalist will find his worries assuaged if he just regards consent, promises, and property rights and powers as responses to reasons, responses which humans are generally capable of having. And on that happy note, we may conclude.

46 Raz 1975, 53–7.