Dworkin on the semantics of legal and political concepts

Oxford Journal of Legal Studies

Volumn 26, Issue 3, 2006, Pages 545-557

  Patterson, Dennis M ^a  

^a Institute for Law and Philosophy   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33748936105     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gql017     Document Type: Article

References (76)

1. Ronald Dworkin, 'Introduction' in The Philosophy of Law 1 (Ronald Dworkin ed., 1977).
2. Of course, when Hart wrote The Concept of Law, 'philosophy of language' was conceived of as 'philosophical logic'. While Hart paid some attention to questions of meaning, it is only recently that issues of reference, meaning and truth have become central in analytic jurisprudence. For doubts about the role of ordinary language philosophy in Hart's jurisprudence, see Les Green 'The Concept of Law Revisited', 94 Michigan L Rev 1687 (1996).
3. H.L.A. Hart, The Concept of Law (2nd edn, 1994) at 297 (referencing and endorsing Wittgenstein's rule-following discussion).
4. See also P.M.S. Hacker, Wittgenstein's Place in Twentieth-Century Analytic Philosophy (1996) at 156 ('[Hart] applied lessons learnt from contemporary reflections in the philosophy of language, in particular from Austin, Wisdom...Wittgenstein and Waismann, to jurisprudential questions').
5. See Dworkin, 'Introduction', above n 1 at 8 ('I think that many positivists rely, more or less consciously, on an anti-realist theory of meaning').
6. The usefulness of realist semantics is questioned in Brian Bix 'Can Theories of Meaning and Reference Solve the Problem of Legal Determinacy?', 16 Ratio Juris (2003) at 281.
7. See Ronald Dworkin, 'Hart's Postscript and the Character of Political Philosophy', (2004) 24 OJLS 1.
8. This essay is reprinted in Ronald Dworkin, Justice in Robes (2006) at 140-86. All citations are to the original essay.
9. Ibid at 12 (describing political values as 'real' and possessed of a 'deep structure' or 'essence'). Positivists have long rejected Dworkin's view that positivism presupposes a criterial theory of the meaning of law. Dworkin confuses the view that the content of the rule of recognition is determined by shared criteria, which is a positivist view, with the view that the meaning of the word 'law' is determined by shared criteria. The latter is no part of the theory of positivism.
10. For discussion, see Kenneth Einar Himma 'Ambiguously Stung: Dworkin's Semantic Sting Reconfigured', 8 Legal Theory (June 2002) 145-84.
11. I am mindful that Dworkin says that there are 'instructive similarities' (Dworkin, p. 12) to be drawn between natural kind concepts like water, tiger and gold and political concepts like democracy, liberty, and equality. It is difficult to discern just how far Dworkin intends to take this comparison. Michael Green has recently argued that Dworkin commits a 'fallacy' (Green dubs it 'Dworkin's Fallacy') by grounding an interpretive theory of law in an interpretive theory of meaning.
12. See Michael Steven Green 'Dworkin's Fallacy, or What the Philosophy of Language Can't Teach Us About the Law', 89 Virginia L. Rev. 1897, 1909-10 (2003).
13. Dworkin describes Green's account of his argument as a 'surprising misreading'. Dworkin, Justice in Robes, above n 7 at 226. Additionally, Dworkin states that legal concepts are 'interpretive concepts' and not natural kind concepts. ('I explicitly rejected a natural kind interpretation of any of the concepts of law'. Ibid at 227). One is left to wonder just what Dworkin means when he states there are 'instructive similarities' to be drawn between legal and natural kind concepts. The essence of natural kind concepts is necessity, specifically metaphysical necessity (see the discussion of Kripke below at n 28). If legal and natural kind concepts are not similar in terms of metaphysical necessity, it is rather unclear in just what sense Dworkin thinks they are 'similar'.
14. I owe this way of making the point to John Oberdiek.
15. Hart, above n 3 at 94-99 (describing the Rule of Recognition). Jules Coleman argues that the Rule of Recognition need not be epistemic.
16. See Jules Coleman, The Practice of Principle (2001) at 132.
17. Here, Dworkin describes what he takes to be one of the leading examples of Archimedean philosophical thought, meta-ethics: 'The most familiar of these specialist philosophies is so-called 'meta-ethics'. It discusses the logical status of the "value judgments" that ordinary people make when they say, for example, that abortion is morally wrong, or that racial discrimination is wicked or that it is better to betray one's country than one's friends. Some meta-ethical philosophers say that these value judgments are either true or false, and that if they are true then they correctly report some mind-independent moral fact. Others deny this: They say that value judgments are not reports about an independent reality, but are rather expressions of emotion or personal taste, or recommendations for behaviour, or something subjective of that character. But the philosophers in both groups insist that their own theories-the theory that value judgments are objectively true as well as the rival theory that they only express emotion-are not themselves value judgments. Second-order philosophical theories about value judgments, the philosophers insist, are neutral, philosophical and uncommitted. They take no position about the morality of abortion or discrimination or friendship or patriotism. They are conceptual or descriptive, not substantive and engaged'. Dworkin, above n 6, at 2-3.
18. Ibid at 3.
19. Ibid.
20. Ibid at 3.
21. Ibid at 10.
22. Ibid.
23. Ibid.
24. Ibid at 11.
25. For a detailed argument for the proposition that 'species' is a dubious natural kind concept, see Joseph Laporte, Natural Kinds and Conceptual Change (2004) at 63-91.
26. Dworkin, above n 6 at 11.
27. Ibid.
28. Ibid at 13.
29. See also ibid at 12 (describing legal and political concepts as having a 'nature or essence').
30. Ibid at 19.
31. Ibid at 13. The key paragraph reads: 'The difference between natural kinds and political values that I emphasized of course remains after we have noticed these similarities. The deep structure of natural kinds is physical. The deep structure of political values is not physical - it is normative. But just as a scientist can aim, as a distinct kind of project, to reveal the very nature of a tiger or of gold by exposing the basic physical structure of these entities, so a political philosopher can aim to reveal the very nature of freedom by exposing its normative core. In each case we can describe the enterprise, if we wish, as conceptual. The physicist helps us to see the essence of water; the philosopher helps us to see the essence of liberty. The difference between these projects, so grandly described, and more mundane projects-between discovering the essence of water and discovering the temperature at which it freezes, or between identifying the nature of freedom and deciding whether taxation compromises freedom-is finally only one of degree. But the comprehensiveness and the fundamental character of the more ambitious study-its self-conscious aim at discovering something that is fundamental by way of explanation-justifies reserving the name of conceptual for it. We cannot sensibly claim that a philosophical analysis of a value is conceptual, neutral and disengaged. But we can sensibly claim it to be normative, engaged, and conceptual'. Ibid.
32. Ibid at 12 ('[P]olitical values have a deep structure that explains their concrete manifestations').
33. John Locke, An Essay on Human Understanding, Vol. II, 26 (1894, 1959) (A.C. Fraser ed., New York: Dover) ('the being of anything whereby it is what it is').
34. For discussion, see John W. Yolton, A Locke Dictionary (1993) at 179-80 (entry for 'Properties').
35. See Saul A. Kripke, 'Naming and Necessity' in Semantics of Natural Language (1972), Donald Davidson and Gilbert Harman (eds). While not directly important for the purposes of this article, there is some relevant history of philosophy that needs to be told. Concepts such as analyticity and necessity played an indisputably central role in philosophy until the publication in 1951 of Quine's seminal article 'Two Dogmas of Empiricism'. The conventional understanding is that with this article, Quine showed that the long-held distinction between analytic and synthetic truths could not be maintained. Quine's view was orthodoxy until 1970, when Saul Kripke gave three lectures at Princeton that became the book Naming and Necessity. Kripke, it was believed, showed that propositions like 'Water is H2O' and 'Whales are mammals' are both necessarily true and their truth discovered as a result of scientific investigation. Hence, these propositions are necessary, aposteriori truths. For details, see Scott Soames, Philosophical Analysis in the 20th Century (2 volumes, 2003).
36. Hilary Putnam, 'The Meaning of Meaning' in Mind, Language and Reality (1975) at 251-71
37. Ibid at 269.
38. The Kripke/Putnam account of natural kinds is not without its difficulties: 'A paradoxical consequence of this view is that two words may be used in exactly the same way, according to exactly the same criteria, yet differ in meaning because they happen to be applied to things or substances with different essences. For example, people on a different planet may use a word exactly as we use the word 'water': To denote a transparent, tasteless, drinkable liquid that occurs in rivers, lakes and as rain, but their word would have a different meaning if 'water' on their planet was not constituted of H2O. Conversely, if water was discovered to have the same molecular structure as tar, then the words 'water' and 'tar', in spite of their markedly different use, would have the same meaning'. Severin Schroeder, Wittgenstein (2006) at 248.
39. Hacker, above n 3, at 251.
40. 20?'
41. Hacker, above n 3, at 329, n 43.
42. These include phosphates, nitrates, sodium, potassium, magnesium, calcium, sulphates, chlorides and hydrogen carbonate. See http://www.iapws.org/faq1/isotope.htm. See Noam Chomsky, 'Language and Nature', Mind, 104 (1995) at 22 (whether something is water depends on human interests).
43. See John Dupré, The Disorder of Things (1993) at 28.
44. See Michael S. Moore, 'A Natural Law Theory of Interpretation' (1985) 58 S. California L. Rev. 277-398.
45. See John Dupré, 'Is "Natural Kind" a Natural Kind Term?' (2002) 85 The Monist 29-49 (examples from biology); Philip Kitcher, 'Ghostly Whispers: Mayr, Ghiselin, and the "Philosophers" on the Ontological Status of Species' (1987) 2 Biology and Philosophy 184-92 (on the concept of 'species').
46. See also Nicos Stavropoulos, Objectivity in Law (1996)
47. David O. Brink, 'Legal Interpretation, and Judicial Review' (1988) 17 Philosophy and Public Affairs 105.
48. Jeremy Waldron, Law and Disagreement (1999) at 179 ('[I]n non-moral cases...we can supplement the simple epistemology of looking-and-seeing with a whole apparatus on which we agree... There is nothing comparable in ethics'.).
49. Dworkin has consistently denied that the failure to demonstrate the truth of legal propositions does not mean there is no truth of the matter. See his essay 'Is There Really No Right Answer in Hard Cases?' in Ronald Dworkin, A Matter of Principle (1985) at 137-45 (rejecting the 'non-demonstrability thesis'). My point, following Waldron, is not to deny the claim that there is in fact a right answer. Rather, the claim is that the fact of a right answer does not matter because the failure to identify the right answer as such means that the answer cannot help us in identifying the true state of the law on any given question. Thus, the claim is not that moral realism is false; the claim is that it is superfluous.
50. Jules Coleman and Ori Simchen argue that 'a perceived lack of agreement among jurisprudents would constitute a key factor as to why the extension of "law" is not fixed by reliance on jurisprudential expertise'. see Jules L. Coleman and Ori Simchen, 'Law' (2003) 9 Legal Theory 26. In fact, 'the kind of disagreement that Dworkin emphasizes and no one disputes-undermines the trust necessary for reliance on jurisprudential expertise'. Ibid at 26.
51. Thomas Nagel, The Last Word (2001) at 101. Nagel further argues: 'We can regard our scientific beliefs as objectively true not because the external world causes us to have them but because we are able to arrive at those beliefs by methods that have a good claim to be reliable, by virtue of their success in selecting among rival hypotheses that survive the best criticisms and questions we can throw at them... It is mainly because we have no comparably uncontroversial and well-developed methods for thinking about morality that a subjectivist position here is more credible than it is with regard to science.' Ibid at 101-102. (Nagel goes on to argue that, while objectivity in ethics is more difficult to defend than objectivity in science, it can nonetheless be successfully defended). My thanks to John Oberdiek for reminding me of Nagel's discussion.
52. Dworkin, above n 6 at 12.
53. Ibid. ('[T]he existence and character of freedom as a value does not depend on anyone's invention or belief or decision'.)
54. Dworkin, above n 6 at 12.
55. Dworkin claims that 'just as a scientist can aim... to reveal the very nature of a tiger or gold by exposing the basic physical structure of these entities, so a political philosopher can aim to reveal the very nature of freedom by exposing its normative core'. Dworkin, above n 6 at 13.
56. Of course, a realist might dismiss my objection as a mere epistemic quibble. My point is that even if we grant the realist his metaphysical premises, his account of normativity (i.e. correct and incorrect judgment) is woefully inadequate for the simple reason that without consensus on a standard, appeal to 'the true nature of things' is empty. This is the lesson of Wittgenstein's 'Paradox of Interpretation Argument'. For discussion, see Meredith Williams, Wittgenstein, Mind and Meaning (1999) at 160.
57. See Dworkin, above n 6 at 13 ('the task of the political philosopher is to show justice in its best light').
58. Dworkin, above n 6 at 14.
59. See Dennis Patterson, Law and Truth (1996) (arguing for a practice theory account of the meaning of 'truth' in law).
60. While he eschews meta-ethics, Dworkin reaffirms his commitment to the epistemic virtues of holism and Rawlsian reflective equilibrium (Dworkin, above n 6 at 14 and 18).
61. Ronald Dworkin, Taking Rights Seriously (1977) at 160. Dworkin further explained that the 'constructive model does not assume...that principles of justice have some fixed, objective existence, so that descriptions of these principles must be true or false in some standard way. It does not assume that the animal it matches to the bones actually exists'. Ibid.
62. Ibid.
63. Dworkin, above n 6 at 12-13.
64. Of course, Dworkin has described himself as a 'realist'. See Ronald Dworkin, 'Objectivity and Truth: You'd Better Believe It' (1996) 25 Philosophy & Public Affairs 87, 128 ('My realism...knows no bounds').
65. If Dworkin is not shifting his account of adjudication from a constructive to a discovery model, then the point of his argument for 'instructive similarities' between natural kind terms and interpretive concepts like 'law' is opaque. As stated above, if legal (i.e. interpretive) concepts and natural kind concepts are not similar in terms of metaphysical necessity, it is rather unclear in just what sense Dworkin thinks they are similar.
66. For an excellent discussion of the distinction between fit and justification, see Lawrence Solum, Legal Theory Lexicon: Fit and Justification, http://lsolum.blogspot.com/archives/ 2005_03_01_lsolum_archive.html#111072607292619611 (March 26, 2006) (revised version) Legal Theory Lexicon ('Fit and Justification').
67. Ronald Dworkin, Law's Empire (1986) at 47-9.
68. Ibid at 229-30.
69. Ibid at 66 (citation omitted).
70. 2O'. If Dworkin's argument has merit, that merit cannot come as a result of an analogy with Putnam's position as Putnam's natural kinds analysis draws no necessary connection between microstructure and stereotype.
71. An initially charitable reading of Dworkin is that in drawing parallels with natural kinds, Dworkin is advancing what Coleman and Simchen describe as 'the pedestal view' defended by Nicos Stavropolous: 'The rough overall claim...is that the application of concepts is sensitive to theory. The arguments in the philosophy of language to be considered will support this overall claim, by showing that theory must explain and justify a concept's past application-its use-through substantive claims about what property the concepts picks out, and how that property's nature determines future applications. Theory... guides future applications..."Theory" here is meant not as a body of formal or abstract reasoning, but rather as a set of substantive claims amenable to argument. Notice that theory will be relevant whatever the property picked out by the concept is, whether complex and difficult to identify, or simple and identifiable by everyone. What matters is that which property is involved is understood to be a substantive issue.' Coleman and Simchen, above n 40 at 11 n 16 (citing and quoting Nicos Stavropoulos, above n 38 at 15). What is 'charitable' in this reading is that Dworkin avoids identifying the meaning of 'law' solely with a microstructure. But the pedestal view is not without its own problems. According to Coleman and Simchen, '[t]he problem is that such a view attributes to speakers, when using a kind term N, the intention to refer to everything having the same underlying nature as some paradigmatic sample of N quite apart from what any expert doctrine about the nature of N does or would reveal. But speakers cannot be plausibly ascribed any such intention because it requires attributing to them a robust metaphysical notion that is simply not likely to be part of their conceptual repertoire'. Ibid at 36, n 43.
72. I appreciate that this reading of Dworkin sees his commitment to metaphysical realism as much stronger than he has previously expressed. While one of his students has argued for the use of the semantic theories of Kripke and Putnam for law (see Stavropoulos, above n 38) Dworkin himself has never endorsed natural kinds as a way of understanding the meaning of legal and political terms (in fact, he explicitly rejects such a view). Nevertheless, taken at his word, Dworkin seems to have moved his jurisprudence much closer to that of Michael Moore, who has criticized Dworkin for his failure to adopt a strong metaphysical position. See Michael Moore, 'Metaphysics, Epistemology and Legality' 60 Southern California L Rev 453, 458 (1987) (describing Dworkin as a 'conventionalist'). Needless to say, Dworkin himself makes things no less difficult by failing to mention, let alone discuss, any of the literature on natural kinds. (For example, in his entire article the names 'Kripke' and 'Putnam' (nor anyone else in the literature) are never mentioned)
73. For discussion, see Richard Rorty, 'How Many Grains Make a Heap?' (2005) 27 London Review of Books 12-13 (reviewing Soames, above at n 28).
74. Dworkin, Law's Empire, above n 57 at 239.
75. Dworkin seems to have come to this view himself. See Dworkin, Justice in Robes, above n 6 at 224-25.
76. In a previously unpublished chapter (Chapter Six-'The Concepts of Law') in this collection of essays, Dworkin reverts to his long-standing methodological argument for 'constructive interpretation'. Here is his description of how two participants in a practice decide the meaning of 'justice': 'Liberals and conservatives share the concept of justice but they do not agree either about the criteria for judgments about justice or about which institutions are just and which unjust. They participate in a social practice of judging acts and institutions just and unjust and because each has opinions, articulate or inarticulate, about what the most basic assumptions of that practice, its point and purpose, should be taken to be. They draw from those assumptions more concrete opinions about the right way to continue the practice on particular occasions: The right judgments to make and the right behavior in response to those judgments. An illuminating analysis of the concept of justice must be an interpretive theory of just that kind. The analyst must deploy his own sense of the values that the practice should be taken to serve and of the conceptions of the concepts in play that best serve those values. An analysis of a criterial or natural kind concept must be neutral among the various normative controversies in which the concept figures: Whether bachelors should be encouraged to marry or whether tigers should be protected as an endangered species. But a useful analysis of an interpretive concept-beyond the bare statement that it is interpretive and a very general account of the practices in which it figures-cannot be neutral. It must join issue in the controversies it hopes to illuminate'. Ibid. This is classic 'fit and justification' Dworkin. The meaning of 'justice' is not fixed by anything other than argument. Judgments about the meaning of interpretive concepts are fashioned not by identifying a normative core but by appeal to the participant's own sense of the point or purpose of the institution in question.