Dworkin's interpretivism and the pragmatics of legal disputes

David Plunkett, Timothy Sundell

Research output: Contribution to journalArticlepeer-review

46 Scopus citations

Abstract

One of Ronald Dworkin's most distinctive claims in legal philosophy is that law is an interpretative concept, a special kind of concept whose correct application depends neither on fixed criteria nor on an instance-identifying decision procedure but rather on the normative or evaluative facts that best justify the total set of practices in which that concept is used. The main argument that Dworkin gives for interpretivism about some concept - law, among many others - is a disagreement-based argument. We argue here that Dworkin's disagreement-based argument relies on a mistaken premise about the nature of disagreement. We propose an alternative analysis of the type of dispute - what we call seeming variation cases - that Dworkin uses to motivate the idea of interpretative concepts. We begin by observing 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 negotiations, disputes in which speakers do not express the same concepts by their words but rather negotiate how words should be used and thereby negotiate which of a range of competing concepts should be used in that context. We claim that this view has quite general theoretical advantages over Dworkin's interpretivism about seeming variation cases and about the relevant class of legal disputes in particular. This paper thus has two interlocking goals: (1) to undermine one of Dworkin's core arguments for interpretivism, and (2) to provide the foundations for a noninterpretivist alternative account of an important class of legal disputes.

Original languageEnglish
Pages (from-to)242-281
Number of pages40
JournalLegal Theory
Volume19
Issue number3
DOIs
StatePublished - Sep 2013

ASJC Scopus subject areas

  • Philosophy
  • Law

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