REWI Uni Graz: Dear Piero, thank you very much for the interview! You have been with us in Graz for some time now. How do you like it so far?
Piero Mattei-Gentili: Sincerely, I am in love with Graz. I imagined it would be a beautiful city, but it is actually more beautiful than what I thought. I consider the city should be touristically more promoted. But also, as a place for living, it is quite a vibrant city with good restaurants and bars, good bookshops and generally people are pretty nice.
The University of Graz is also in line with the city. It is a nice place to be, with beautiful buildings, constantly having interesting events and, personally, I have found a very stimulating environment in the Graz Jurisprudence group led by Professor Matthias Klatt.
Please tell us something about your research! Your research topic is "Tackling implicit law". What does that mean?
What it actually means is that, from the perspective of Legal Theory or Jurisprudence, I have been mainly researching about the notion of custom as a source of law or, somehow shortly, customary law. In which sense does custom relate with the notion of implicit law might not be so evident; so, let me explain further.
Legal theory, and legal studies in general, focus their analysis mainly on legislation and secondarily on jurisprudence, sources of law that manifest themselves through words settled on documents, words that supposedly refer to the law in force. On the other side, traditional studies tend to regard custom as a relegated and very archaic source that has almost lost importance in modern law. When they think about customary law, they tend to put their sight only on the practices recognized as law by legislation, which mainly are some aspects from Merchant and Civil Law, and they regard International Public Law – which is based primarily on custom – as something plainly weird, something that might not even be properly called law.
But something certain is that the analysis of legislation and jurisprudence cannot provide an exhaustive explanation of the law. There is so much more going on in the development of law that is not grasped by those sources, and something that normally is intriguing for lawyers and legal scholars. Here is where custom, as an implicit source of law, comes into scene.
Broadly, customary rules are brought into being and projected upon the conduct they intend to regulate. Lon Fuller is one of the first contemporary legal scholars that identified customary law as implicit law, remarking that customary rules are created from the practice itself of the law where “made law” (i. e., legislation and jurisprudence) does not suffices to comprehend either the will of the legislator or the solution intended for a given case. Hence, customary law, as implicit law, plays a crucial role in the field of the identification and interpretation of the law in force, as the practice of collectively and effectively recognizing certain standards as adequate or for such purposes.
In short, in the sense explained, custom plays a relevant and implicit role in law, as a source of spontaneous conventional rules developed from the practice of law itself.
How does the fellowship at the Faculty of Law significantly increase the quality of your research project?
To answer this question with honesty, I have to explain something about the background that motivated me to start this research project.
Some years ago, I started thinking about developing research about customary law or custom as a source of law for my doctoral dissertation. By the time, talking about my intentions with some people, a renowned Paraguayan legal philosopher, Professor Daniel Mendonca, introduced me to the work of David K. Lewis, Convention: A Philosophical Study, and suggested that from it one could extract some good ideas for an investigation of the sort I had in mind. By the way, he also suggested me to translate Lewis’ book to Spanish, which I did.
Hence, I delved into Lewis’ conventionalism and, considering it mostly adequate, adopted it as the backbone model for social conventions that I would adopt and adapt to explain customary law.
During the development of my doctoral dissertation in Girona I met Professor Matthias Klatt and found out he had written a book called, Making the Law Explicit, which adopts Robert Brandom’s theory about how language acquires meaning from social practices to explain the limits of the wording (literal tenor) in the practice of identification of meanings (rules) in law. That is, Brandom’s theory adopts a sort of conventionalist perspective.
Consequently, the Land Steiermark Fellowship has allowed me to discuss in firsthand with Professor Klatt his Brandomian theory to revisit and complement my Lewisian stance to enhance my research about the role of custom a source of law.
What are your outcomes so far?
My doctoral dissertation is done, and pretty much its conclusions remain untouched. For most, what I have found out is that between Brandom’s theory and Lewis’ theory there is not much disagreement. Possibly the main difference being the fact that Brandom considers that the normative attitudes that involves the conventional rules implies that social rules necessarily carry sanctions, while this is not granted in Lewis’ theory and that – by endorsing Hart’s theory of law – I also deny.
However, I do think that Brandom’s theory is complementary with Lewis’ framework, in the sense that the latter only intended to explain how conventions are possible (including language as a conventional product), while – as I understand it – Brandom takes conventionalism for granted and, instead, tries to explain how come concurrent social practices develop an inferential framework where the creation of meanings is possible. Hence, what I have been further proving to develop is a study that combines these theories to explain in more detail phenomena like, for example, how state and court practices develop common meanings that translate into customary rules for International Public Law.
What are your further career plans?
I think of myself as an academic, and after several years of teaching and doing research, and considering that I have just finished my doctoral thesis, it is difficult to imagine myself doing anything far away from academia, at least in the near future. Therefore, from a realistic overview of my professional prospects, I hope it be possible for me to land a stable position as a professor and researcher in Mexico. This would be ideal for me, not only because I like academia as a profession, but because I still have in mind some researching projects that I would like to develop. As I see it, conventionalism is a point of departure that has allowed me to also get into subjects of Metaphysics, Philosophy of Mind, Rational Choice, Game Theory and Behavioral Psychology that open the door for numerous potentially relevant research in Legal Philosophy.
Also, after consolidating myself as an academic, I must admit that I have been thinking for a while about developing a project that relates my outcomes in theoretical legal research with an “experimental form” of the practice of law, but I still have not concreted nothing in particular about this.