DEPARTAMENTO ADMINISTRATIVO DE TRANSITO DE CARTAGENA

A third strategy for defending proceduralism, distinct from moral skepticism and moral foundationalism, is the conventionalist strat- egy. Conventionalism (as I use the term here) is the view that moral- ity, or some part thereof, is a function of social norms.115 _Convention- alism could be a general view about morality (in which case it be- comes a kind of foundationalism); or, less ambitiously, it could be the view that certain moral criteria (for example, criteria of objective welfare-value, which set forth better or worse “ways of life”) are re- ducible to social norms.116

Social norms have been conceptualized in various ways but, roughly, norms are constituted by common beliefs and behaviors.117 Crucially, social norms are distinct from legal norms and proce- dures.118 _{This distinction is a central point in the burgeoning litera-} 114. There is obviously nothing in the values of overall well-being, equality of welfare, and environmental preservation that entails that an outcome which is seriously worse than another with respect to one of the values, or all taken together, will actually have been rejected by a governmental body or by some other such mechanism for collective choice.

115. See BRINK, supra note 52, at 14-36 (defining conventionalism and distinguishing conventionalism from noncognitivism).

116. See, e.g., JOSEPH RAZ, ETHICS IN THE PUBLIC DOMAIN 3-5 (1994) (explaining that valuable activities depend on social practices for their availability and, to a degree, even for their existence).

117. Seegenerally Matthew D. Adler, Expressive Theories of Law: A Skeptical Overview

148 U. PA. L. REV. 1363, 1467-72 (2000) (describing various conceptualizations of “social norms”).

ture on social norms;119 _{and it amounts to the fatal flaw in the con-} ventionalist defense of proceduralism. However social norms are de- fined, it is not the case that the (assumed) truth of conventionalism will make certain regulatory procedures intrinsically important. Consider a simple version of conventionalism that defines social norms, and some or all moral criteria, by reference to the evaluative judgments shared by a large majority of the relevant society.120 _One outcome is better than another, in light of social norms, only if a large majority of the society would judge the first to be better. Imag- ine further that the only evaluative judgments shared by a large ma- jority of the relevant society with respect to regulatory agencies are substantive judgments. There is not, let us assume, general agree- ment that regulatory agencies should follow or refrain from following particular procedures. Then in this society regulators have no intrin- sic, conventional obligation to follow or refrain from following certain procedures. The regulator’s sheer decision to follow a particular pro- cedure will not (without more) be conventionally good or bad. For ex- ample, it might be widely agreed in the society that certain wilder- ness areas are precious. Then if one outcome (O1) damages the areas relative to a second (O2), O1 will be conventionally worse than O2 re- gardless of the procedure by which O1 was adopted. Conversely, if the two outcomes are neutral with respect to their impact on the wilder- ness areas, the regulator’s choice of one or the other will be conven-

119. The legal scholarship includes ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW

NEIGHBORS SETTLE DISPUTES (1991); Lisa Bernstein, Opting out of the Legal System: Ex- tralegal Contractual Relations in the Diamond Industry, 21 J. LEGAL STUD. 115 (1992); Robert Cooter, Normative Failure Theory of Law, 82 CORNELL L. REV. 947 (1997); Steven A. Hetcher, Creating Safe Social Norms in a Dangerous World, 73 S. CAL. L. REV. 1 (1999);

William K. Jones, A Theory of Social Norms, 1994 U. ILL. L. REV. 545; Jody S. Kraus, Le- gal Design and the Evolution of Commercial Norms, 26 J. LEGAL STUD. 377 (1997); Law- rence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943 (1995); Richard H. McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 HARV. L. REV. 1003 (1995) [hereinafter McAdams, Cooperation and Conflict]; Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 MICH. L. REV. 338 (1997) [hereinafter McAdams, The Origin, Development, and Regulation of Norms]; Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903 (1996); Symposium, Law, Economics, & Norms, 144 U. PA. L. REV. 1643 (1996); and Sym- posium, Social Norms, Social Meaning, and the Economic Analysis of Law, 27 J. LEGAL

STUD. 537 (1998). Yet further entries in the legal literature are cited by Hetcher, supra, at 2-3 nn.2-4.

120. Cf. Cooter, supra note 119 (arguing that the existence of a norm involves the pun- ishment of nonconformers by “norm enforcers” who have “internalized” the norm); McAdams, The Origin, Development and Regulation of Norms, supra note 119 (arguing that norms involve a preexisting moral consensus among some portion of the population, which becomes widely known and is then informally enforced by the withdrawal of esteem from norm-violators).

tionally neutral regardless of the procedure by which the choice was resolved.121

It might be objected that this example does not vitiate the link be- tween proceduralism and conventionalism. Rather, what the example shows is that (on the simple version of conventionalism under con- sideration here) regulators in the United States have intrinsic proce- dural obligations if, and only if, a large majority of Americans believe that certain regulatory procedures are bad or good. Thus it is only in the special case where there is no procedure whose goodness or bad- ness is supported by an evaluative consensus that proceduralism fails. True enough. If the goodness or badness of a particular proce- dure (P*) is supported by an evaluative consensus, then (on this ver- sion of conventionalism) regulators have moral reason to follow or re- frain from P*, independent of its outcomes. But, relatedly:

(1) for any particular procedure P' (for example, a procedure of pluralist bargaining, or of civic republican deliberation, or of col- laborative governance), regulators will have moral reason to follow or refrain from P', independent of outcomes, only insofar as an evaluative consensus supporting the goodness or badness of P' ex- ists; and thus

(2) no conventional argument for P' that transcends the popula- tion’s contingent beliefs about procedures is possible.

In short, the proceduralist who presents a conventionalist argu- ment for pluralism, civic republicanism, collaborative governance, or some other P' is properly engaged in descriptive sociology; all she can claim is that citizens happen to share a common set of beliefs about

P', and that P' will remain of intrinsic importance as long as they do. Note, too, that a firm conventionalist argument for P' (civic republi- canism, say) as against P'' (pluralism, say) is not really possible, be- cause consensus beliefs may shift from P' to P''. The proceduralist who wants an argument for her favored procedure, P', that outlasts the lucky sociological fact that P' also falls under the description, “be- lieved to be good by most Americans,” had better look beyond conven- tionalism.122

121. I am assuming here that O1 is not conventionally better than O2, or vice versa, in

light of some feature other than its impact on the wilderness areas. Otherwise, O1 might be

conventionally better than O2, all things considered, even though O1 damages the areas.

122. Again, my discussion here has focused on a particular, simple version of conven- tionalism; but what I say can, I think, be generalized.