Ambiguously stung: Dworkin's Semantic Sting Reconfigured

Legal Theory

Volumn 8, Issue 2, 2002, Pages 145-183

  Himma, Kenneth Einar ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33748940645     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325202082010     Document Type: Article

References (46)

1. Ronald Dworkin, LAW'S EMPIRE (1986). Hereinafter referred to as LE.3. Scott J. Shapiro, The Difference that Rules Make, in ANALYZING LAW: NEW ESSAYS IN LEGAL THEORY 56 (Brian Bix, ed., 1998).
2. H.L.A. Hart, THE CONCEPT OF LAW 255 (2nd ed., 1994). Hereinafter referred to as CL.
3. Ronald Dworkin, TAKING RIGHTS SERIOUSLY 61-62 (1978). Hereinafter referred to as TRS.
4. Nevertheless, obedience is more than just convergent behavior; it presupposes that such behavior is (at least sometimes) guided by the rule. Accordingly, Hart's characterization of the rule of recognition as a social rule has two cognitive elements: (1) the officials of a system take the internal point of view towards the rule of recognition; and (2) most of the population generally obey laws validated by that rule.
5. Indeed, as is readily evident, convergent behavior on the part of officials cannot, without more, preclude disagreements about the content of that behavior. Two people whose outward behavior appears identical can obviously disagree about the content of and motivations for that behavior.
6. Jules Coleman, Negative and Positive Positivism, 11 J. LEGAL STUD. 139, 156 (1982). Hereinafter referred to as NAPP.
7. For a discussion of this point, see Timothy A.O. Endicott, Herbert Hart and the Semantic Sting, 4 LEGAL THEORY 3, 283-300 (1998).
8. Brown, 347 U.S. 483, 494 (1954).
9. Brown, 347 U.S. 483, 495 (1954).
10. Plessy v. Ferguson, 163 U.S. 537, 544 (1896).
11. Plessy v. Ferguson, 163 U.S. 537, 544 (1896).
12. Brown, 347 U.S. 483, 494 (1954).
13. Dworkin cites the Brown case in LAW'S EMPIRE as an example of the kind of disagreement that is inconsistent with positivism (LE 28-29), but it is clear that all parties shared the Equal Protection Clause as the relevant criterion of legal validity. The dispute was over whether public school segregation is consistent with the requirements of this clause.
14. Endicott makes a similar point. Endicott believes that many paradigms are subject to revision, but not all. Some of them have a conceptual flavor: “[i]t seems that no conception of epic poetry could account for other instances of the genre, if it excluded the Odyssey.” Endicott, Hart and the Semantic Sting at 294.
15. All sides (with the exception of critical legal theorists) acknowledge that there are limits on the range of reasonable interpretations of a law. Brian Leiter, for example, argues that legal realism is not committed to the view that the law is always radically indeterminate: “the evidential base of cases actually litigated could not support the inference that the law is globally indeterminate, for it would omit all those ‘easy’ cases in which a clear-cut legal rule dictates a result.” See Brian Leiter, Legal Realism, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY 267 (Dennis Patterson, ed., 1996). While it would be difficult to provide a plausible account of where those limits fall, disputes about an interpretation of standard S that fall clearly outside those limits must be construed as being about whether S is an authoritative standard.
16. A more recent argument by Coleman addressing this issue is discussed in Subsection IV.2, All sides (with the exception of critical legal theorists) acknowledge that there are limits on the range of reasonable interpretations of a law.
17. Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188, 192 (1889); emphasis added.
18. Riggs, 22 N.E. 188, 191-192.
19. Riggs, 22 N.E. 188, 190.
20. See Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, 4 LEGAL THEORY 3, 250 (1998). Hereinafter referred to as TV. See also Endicott, Hart and the Semantic Sting at 285 (“Hart did not have a criterial semantic theory-or any semantic theory at all, if a semantic theory is a general explanatory account of what makes an application of an expression correct”).
21. Coleman makes a similar argument in Jules L. Coleman, THE PRACTICE OF PRINCIPLE: IN DEFENCE OF THE PRAGMATIST APPROACH TO LEGAL THEORY (2001).
22. John Finnis, NATURAL LAW AND NATURAL RIGHTS 266 (1980).
23. Joseph Raz, THE AUTHORITY OF LAW 101 (1979).
24. See Jules L. Coleman, Negative and Positive Positivism, 11 J. LEGAL STUD. 139 (1982); and Kenneth Einar Himma, The Epistemic Sense of the Pedigree Thesis, 80 PAC. PHIL. Q. 1 (1999).
25. Joseph Raz argues for a defense against the semantic sting that relies on the possibility that a society's criteria of validity might be incomplete. Raz argues that that there are shared criteria for the use of a concept does not imply that there cannot be disagreement about those criteria (TV 261-65). He points out that people may share criteria that are not fully specified, so that disagreements may arise where specified criteria run out.
26. Shapiro, The Difference Rules Make, 56.
27. Brian Bix pointed out to me that there may be other ways to interpret the disagreement in Riggs. If so, the same argument can be made about these interpretations as the one that I will make about (R1). What ultimately matters, as we will see, is that a holding in either direction results in valid law-no matter how one characterizes the disagreement.
28. Riggs, 22 N.E. 188, 189.
29. Riggs, 22 N.E. 188, 189.
30. Riggs, 22 N.E. 188, 189.
31. Riggs, 22 N.E. 188, 191; emphasis added.
32. Riggs, 22 N.E. 188, 191.
33. Riggs, 22 N.E. 188, 190.
34. Riggs, 22 N.E. 188, 190.
35. Riggs, 22 N.E. 188, 191.
36. See, e.g., Brown v. Barry, 3 U.S. 365, 1 L.Ed. 638 (1797); Cook v. Meyer, 73 Ala. 580 (1883); Hotaling v. Cronise, 2 Cal. 60 (1852); Young v. McKenzie, 3 Ga. 31 (1847); Kramer v. Rebman, 9 Iowa 114 (1859); Dwelly v. Dwelly, 46 Me. 377 (1859); Sibley v. Smith, 2 Mich. 486 (1853); Sullivan v. La Crosse & M. Steam-Packet Co., 10 Minn. 386 (1865); Burnside v. Whitney, 21 N.Y. 148 (1865); Bailey v. Bryan, 48 N.C. 357 (1856); Appeal of Esterley, 54 Pa. St. 192 (1867); and Hearn v. Ewin, 43 Tenn. 399 (1866).
37. See, e.g., Theodore F.T. Plucknett, A CONCISE HISTORY OF THE COMMON LAW (5th ed., 1956).
38. See Idaho Code Civ. Proc., §3.
39. Eversole v. Eversole, 185 S.W. 487, 169 Ky. 793 (1916).
40. See, e.g., Lowmanv. Stafford, 37 Cal. Rptr. 681 (1964); Drafts v. Drafts, 114 So.2d 837 (1963); Wallach v. Wallach, 95 S.E.2d 750 (1956); Bissell Carpet Sweeper Co. v. Shane Co., 143 N.E.2d 415;Williams v. City ofWichita, 374 P.2d 578 (1962); Dieball v. Continental Cas. Co., 176 So.2d 774 (1965); State Highway Commission v. SouthernUnion Gas Co., 332 P.2d 1007 (1958).
41. A.2d 71 (1953).
42. Bird, 95 A.2d at 75. Indeed, as the Bird court points out, the Riggs holding has been criticized in a number of other cases. See, e.g., Shellenberger v. Ransom, 59 N.W. 935 (1894); Wall v. Pfanschmidt, 106 N.E. 785 (1914); and Box v. Lanier, 79 S.W. 1042 (1904).
43. There are, of course, limits to what the Supreme Court can do in creating constitutional law, but those limits are defined by the acceptance of citizens and officials. As long as citizens and officials accept the Court's constitutional holdings, these holdings have the force of law. To my knowledge, the Court has never come closer to reaching the limits of such acceptance than it did with the Brown decision. So much resistance did Brown engender in the South that the court tolerated school segregation there for ten years after its decision. Judicial efforts to enforce Brown achieved real momentum only after the Civil Rights Act of 1964.
44. U.S. 479 (1965).
45. Robert H. Bork, THE TEMPTING OF AMERICA (1990).
46. Roe v. Wade, 410 U.S. 113, 222 (1973).