In work ranging from Law’s Empire to Justice For Hedgehogs, Ronald Dworkin argues that the concept LAW differs from ordinary so-called “criterial” concepts like CHAIR or BOOK in that its meaning does not consist in a set of extension-determining criteria. Instead, he argues that LAW is an instance of a special type of concept—an “interpretive concept”—whose meaning consists not in extension determining criteria, but rather depends on the normative facts that best justify the set of practices in which the concept is used. This result in turn plays a crucial role in Dworkin’s more general arguments for legal antipositivism. Dworkin argues for his interpretivism about LAW by observing the seeming conceptual coherence of a distinctive type of legal disagreement, what he calls “theoretical disagreement,” in which, roughly, parties persist in their disagreement even as it becomes clear that they have divergent views about the criteria for something’s being counted as “a law” in the first place. If the relevant concepts were understood in terms of extension-determining criteria, Dworkin claims, then we would be forced to conclude that parties to such disagreements in fact employed distinct concepts, and thus failed to disagree genuinely with one another. We argue that this line of reasoning relies on a mistaken premise about the nature of disagreement, and we propose an alternative form of analysis of theoretical disagreements. We observe that genuine disagreements can be expressed via a range of linguistic mechanisms, many of which do not require that speakers literally assert and deny one and the same proposition. We focus in particular on what we call “metalinguistic disputes,” disputes in which speakers do not mean the same things by their words and do not employ the same concepts, but rather negotiate how words are to be used and which among a set of competing concepts is best suited to the circumstances. Metalinguistic disputes reflect disagreements that are “genuine” in any plausible sense of the word, and we argue that they provide the basis for a plausible alternative to Dworkin’s interpretivist analysis of theoretical disagreements. In particular, by drawing on the existence of metalinguistic disputes, we advance a full-blooded criterialism about the concepts that speakers in metalinguistic disputes express by the term “law”. We claim that this view has quite general theoretical advantages over Dworkin’s interpretivism, including, importantly, that our view, in contrast to Dworkin’s, does not entail either positivism or antipositivism.
The event will be preceded by refreshments at 19:00.