Herbert Paul Grice and Ronald Myles Dworkin

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Ronald Myles Dworkin, colleague of Herbert Paul Grice at Oxford

Ronald Myles Dworkin at the Brooklyn Book Festival in 2008.
Born	Ronald Myles Dworkin (1931-12-11)December 11, 1931 Providence, Rhode Island, U.S.
Died	February 14, 2013(2013-02-14) (aged 81)[1] London, England
Era	20th/21st-century philosophy
Region	Western Philosophy
School	Jurisprudence, political philosophy
Notable ideas	law as integrity, fit and justification in law, right answer thesis, legal interpretivism, rights as trumps
Cross ·Hand ·Hart ·Rawls ·Fuller
Influenced by Cross ·Hand ·Hart ·Rawls ·Fuller Influenced Alexy ·Dyzenhaus ·Kumm ·Matthew Kramer ·Kymlicka ·Leiter ·Stavropoulos ·Waldron Alexy ·Dyzenhaus ·Kumm ·Matthew Kramer ·Kymlicka ·Leiter ·Stavropoulos ·Waldron

Ronald Myles Dworkin, FBA (December 11, 1931 - February 14, 2013)^[1] was an American philosopher and scholar of constitutional law.

He was Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and had taught previously at Yale Law School and the University of Oxford.

An influential contributor to both philosophy of law and political philosophy, Dworkin received the 2007 Holberg International Memorial Prize in the Humanities for "his pioneering scholarly work" of "worldwide impact."

According to a survey in The Journal of Legal Studies, Dworkin was the second most-cited American legal scholar of the twentieth century.

His theory of law as integrity, in which judges interpret the law in terms of consistent and communal moral principles, especially justice and fairness, is among the most influential contemporary theories about the nature of law.

Dworkin advocated a "moral reading" of the United States Constitution, and an interpretivist approach to law and morality.

He was a frequent commentator on contemporary political and legal issues, particularly those concerning the Supreme Court of the United States, often in the pages of The New York Review of Books.

 

Dworkin was born in 1931 in Providence, Rhode Island, United States, the son of Madeline (Talamo) and David Dworkin.^[5]

He studied at Harvard University and at Magdalen College, Oxford, where he was a Rhodes Scholar and a student of Sir Rupert Cross.

After completing his final year's exams at Oxford, the examiners were so impressed with his script that the Chair of Jurisprudence (then H. L. A. Hart) was summoned to read it.


Dworkin then attended Harvard Law School and subsequently clerked for Judge Learned Hand of the United States Court of Appeals for the Second Circuit.

Judge Hand would later call Dworkin the finest clerk he ever employed, and Dworkin would recall Judge Hand as an enormously influential mentor.

After working at Sullivan & Cromwell, a prominent law firm in New York City, Dworkin became a Professor of Law at Yale University, where he became the holder of the Wesley N. Hohfeld Chair of Jurisprudence.

---- THE OXFORD YEARS

In 1969, Dworkin was appointed to the Chair of Jurisprudence at Oxford, a position in which he succeeded H. L. A. Hart, and elected Fellow of University College, Oxford.

After retiring from Oxford, Dworkin became the Quain Professor of Jurisprudence at University College London, where he subsequently became the Bentham Professor of Jurisprudence.

He was Frank Henry Sommer Professor of Law at New York University School of Law and professor of Philosophy at New York University (NYU),^[6] where he taught since the late 1970s.

He co-taught a colloquium in legal, political, and social philosophy with Thomas Nagel.

Dworkin had regularly contributed, for several decades, to The New York Review of Books.

He delivered the Oliver Wendell Holmes Lecture at Harvard, the Storrs Lectures at Yale, the Tanner Lectures on Human Values at Stanford, and the Scribner Lectures at Princeton.

In June 2011, he joined the professoriate of New College of the Humanities, a private college in London.

Dworkin died of leukemia in London on February 14, 2013 at age 81.^[8]

[edit] Law as rule and principle

Positivism's most significant critic rejects the theory on every conceivable level. He denies that there can be any general theory of the existence and content of law; he denies that local theories of particular legal systems can identify law without recourse to its merits, and he rejects the whole institutional focus of positivism. A theory of law is for Dworkin a theory of how cases ought to be decided and it begins, not with an account of political organization, but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects.^[9]

Dworkin is most famous for his critique of Hart's legal positivism.

He sets forth the fullest statement of his critique in his book Law's Empire.

Dworkin's theory is 'interpretive'.

The law is whatever follows from a constructive interpretation of the institutional history of the legal system.

Dworkin argues that moral principles that people hold dear are often wrong, even to the extent that certain crimes are acceptable if one's principles are skewed enough. To discover and apply these principles, courts interpret the legal data (legislation, cases etc.) with a view to articulating an interpretation that best explains and justifies past legal practice. All interpretation must follow, Dworkin argues, from the notion of "law as integrity" to make sense.

Out of the idea that law is 'interpretive' in this way, Dworkin argues that in every situation where people's legal rights are controversial, the best interpretation involves the right answer thesis. Dworkin opposes the notion that judges have a discretion in such difficult cases.

Dworkin's model of legal principles is also connected with Hart's notion of the Rule of Recognition.
Dworkin rejects Hart's conception of a master rule in every legal system that identifies valid laws, on the basis that this would entail that the process of identifying law must be uncontroversial, whereas (Dworkin argues) people have legal rights even in cases where the correct legal outcome is open to reasonable dispute.

While Dworkin moves away from positivism's separation of law and morality, his concept suggests that the two are related in an epistemic rather than ontological sense as posited by traditional natural law.

 

Suppose the legislature has passed a statute stipulating that "sacrilegious contracts shall henceforth be invalid." The community is divided as to whether a contract signed on Sunday is, for that reason alone, sacrilegious. It is known that very few of the legislators had that question in mind when they voted, and that they are now equally divided on the question of whether it should be so interpreted. Tom and Tim have signed a contract on Sunday, and Tom now sues Tim to enforce the terms of the contract, whose validity Tim contests. Shall we say that the judge must look for the right answer to the question of whether Tom's contract is valid, even though the community is deeply divided about what the right answer is? Or is it more realistic to say that there simply is no right answer to the question? (Dworkin, 1985, p. 119)

One of Dworkin's most interesting and controversial theses states that the law as properly interpreted will give an answer. This is not to say that everyone will have the same answer (a consensus of what is "right"), or if it did, the answer would not be justified exactly in the same way for every person; rather it means that there will be a necessary answer for each individual if he applies himself correctly to the legal question. For the correct method is that encapsulated by the metaphor of Hercules J.

This metaphor of Judge Hercules, an ideal judge, immensely wise and with full knowledge of legal sources. Hercules (the name comes from a classical mythological hero) would also have plenty of time to decide. Acting on the premise that the law is a seamless web, Hercules is required to construct the theory that best fits and justifies the law as a whole (law as integrity) in order to decide any particular case. Hercules, Dworkin argues, would always come to the one right answer.
Dworkin does not deny that competent lawyers often disagree on what is the solution to a given case. On the contrary, he claims that they are disagreeing about the right answer to the case, the answer Hercules would give.

Dworkin's critics argue not only that law proper (that is, the legal sources in a positivist sense) is full of gaps and inconsistencies, but also that other legal standards (including principles) may be insufficient to solve a hard case. Some of them are incommensurable. In any of these situations, even Hercules would be in a dilemma and none of the possible answers would be the right one.

 

Dworkin defends his position saying that non-Herculean judges, much like everyday people, find their way and choose between options and values that were supposed to be incommensurable. Dworkin also argues that it is always possible to find out other rules or principles to solve the conflict between those we had in mind. The same counter-argument, however, regarding principles and moral standards that are incommensurable, would seem to apply to any further principles or rules we may discover in the process. In other words, the claim that there may always be more principles or rules to be taken into account proves nothing about the nature of those further principles, or about Dworkin's claim that the exercise, in the hands of the omnipotent Judge Hercules, will eventually come to a stop (when we have reached the right answer). In fact, the opposite conclusion could just as well be drawn from Dworkin's claim - that the exercise in question, under the guidance of such an omnipotent figure, would extend into infinity. Thus while a "right" answer may be available at any given stage, no final right answer would ever be arrived at by Hercules. Or, there is nothing to suggest one way or the other.
Dworkin's metaphor of judge Hercules bears some resemblance to Rawls' veil of ignorance and Habermas' ideal speech situation, in that they all suggest idealized methods of arriving at somehow valid normative propositions. The key difference with respect to the former is that Rawls' veil of ignorance translates almost seamlessly from the purely ideal to the practical. In relation to politics in a democratic society, for example, it is a way of saying that those in power should treat the political opposition consistently with how they would like to be treated when in opposition, because their present position offers no guarantee as to what their position will be in the political landscape of the future (i.e. they will inevitably form the opposition at some point). Dworkin's Judge Hercules, on the other hand, is a purely idealized construct, that is if such a figure existed, he would arrive at a right answer in every moral dilemma. For a critique along these lines see Lorenzo Zucca's Constitutional Dilemmas.^[10]
Dworkin's right answer thesis turns on the success of his attack on the sceptical argument that right answers in legal-moral dilemmas cannot be determined. Dworkin's anti-sceptical argument is essentially that the properties of the sceptic's claim are analogous to those of substantive moral claims, that is, in asserting that the truth or falsity of "legal-moral" dilemmas cannot be determined, the sceptic makes not a metaphysical claim about the way things are, but a moral claim to the effect that it is, in the face of epistemic uncertainty, unjust to determine legal-moral issues to the detriment of any given individual.

 

Dworkin has also made important contributions to what is sometimes called the equality of what debate. In a famous pair of articles and his book Sovereign Virtue he advocates a theory he calls 'equality of resources'. This theory combines two key ideas. Broadly speaking, the first is that human beings are responsible for the life choices they make. The second is that natural endowments of intelligence and talent are morally arbitrary and ought not to affect the distribution of resources in society. Like the rest of Dworkin's work, his theory of equality is underpinned by the core principle that every person is entitled to equal concern and respect in the design of the structure of society. Dworkin's theory of equality is one variety of so-called luck egalitarianism.

 

In the essay "Do Values Conflict? A Hedgehog's Approach" (Arizona Law Review, Vol 43:2), Dworkin contends that the values of liberty and equality do not necessarily conflict. He criticizes Isaiah Berlin's conception of liberty as "flat" and proposes a new, "dynamic" conception of liberty, suggesting that one cannot say that one's liberty is infringed when one is prevented from committing murder. Thus, liberty cannot be said to have been infringed when no wrong has been done. Put in this way, liberty is only liberty to do whatever we wish so long as we do not infringe upon the rights of others.
The negative conception of liberty (represented by Isaiah Berlin) is however not satisfactory to Dworkin since it merely concerns itself with political processes (e.g. laws forbidding murder, limiting car usage etc.). In Dworkin's view liberty must be understood as entailing certain considerations of equality, since it is not possible to exercise one's freedom without a considerable amount of resources (e.g. participating in the democratic process by voting is not possible without having the food, health, time or knowledge to do so). Liberty is therefore not only a question of process, but must also contain elements of substance.
One further criticism that can be leveled from the Berlinian enterprise is that the so-called "flat" conception of liberty does not entail the liberty to murder - rather, murder (when it does occur) is only a consequence of natural liberty. When one is prevented from murdering, one's liberty is not infringed merely because one is prevented from murdering, but because (more fundamentally) one is prevented from acting at all, by being restrained, handcuffed, put into prison, etc. The fact that one is thereby prevented from murdering is, again, merely a consequence of one's liberty being infringed. Thus Dworkin's argument can be recast as a deep-level consequentialist one.

[

Dworkin is noted for his avid participation in public debates over law and issues of fundamental rights. He has been a frequent contributor to The New York Review of Books.

 

In September 2007, Dworkin was awarded the Holberg International Memorial Prize. The award citation of the Holberg Prize Academic Committee recognized that Dworkin has "elaborated a liberal egalitarian theory" and stressed Dworkin's effort to develop "an original and highly influential legal theory grounding law in morality, characterized by a unique ability to tie together abstract philosophical ideas and arguments with concrete everyday concerns in law, morals, and politics".^[11]
The New York University Annual Survey of American Law honored Dworkin with its 2006 dedication.

In August 2011, the University of Buenos Aires awarded Dworkin an honorary doctorate.

The resolution noted that he "has tirelessly defended the rule of law, democracy and human rights."
0n November 14, 2012, he received the Balzan Prize for Jurisprudence in Quirinale Palace, Rome, from the President of Italian Republic. The Balzan Prize was awarded "for his fundamental contributions to Jurisprudence, characterized by outstanding originality and clarity of thought in a continuing and fruitful interaction with ethical and political theories and with legal practices".

[edit] Bibliography

[edit] Books by Ronald Dworkin

Taking Rights Seriously. Cambridge, MA: Harvard University Press, 1977.

• The Philosophy of Law (Oxford Readings in Philosophy, ed. by G. J. Warnock). Ed. New York: Oxford University Press, 1977.
• A Matter of Principle. Cambridge, MA: Harvard University Press, 1985.
• Law's Empire. Cambridge, MA: Harvard University Press, 1986.

• Philosophical Issues in Senile Dementia. Washington, DC: U.S. Government Printing Office, 1987.
• A Bill of Rights for Britain. Ann Arbor, MI: University of Michigan Press, 1990.
• Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom. New York: Alfred A. Knopf, 1993.
• Freedom's Law: The Moral Reading of the American Constitution. Cambridge, MA: Harvard University Press, 1996.
• Sovereign Virtue: The Theory and Practice of Equality. Cambridge, MA: Harvard University Press, 2000.
• A Badly Flawed Election: Debating Bush v. Gore, the Supreme Court, and American Democracy. Ed. New York: New Press, 2002.
• From Liberal Values to Democratic Transition: Essays in Honor of Janos Kis. Ed. Budapest: Central European University Press, 2004.
• Justice in Robes. Cambridge, MA: Harvard University Press, 2006.
• Is Democracy Possible Here? Principles for a New Political Debate. Princeton, NJ: Princeton University Press, 2006.
• The Supreme Court Phalanx: The Court's New Right-Wing Bloc. New York: New York Review Books, 2008.
• Justice for Hedgehogs. Cambridge, MA: Harvard University Press, 2011.
• Religion Without God. Forthcoming

Secondary literature on Dworkin

• Allard, Julie. Dworkin et Kant: Réflexions sur le judgement. Bruxelles: Editions de l'ULB, 2001.
• Brown, Alexander. Ronald Dworkin's Theory of Equality: Domestic and Global Perspectives. New York: Palgrave Macmillan, 2009.
• Burke, John J.A. The Political Foundation of Law: The Need for Theory with Practical Value. San Francisco: Austin & Winfield, 1992.
• Burley, Justine, ed. Dworkin and His Critics. Oxford: Blackwell Publishing, 2004.
• Cohen, Marshall, ed. Ronald Dworkin and Contemporary Jurisprudence. London: Duckworth, 1984.
• Gaffney, Paul. Ronald Dworkin on Law as Integrity: Rights as Principles of Adjudication. Lewiston, New York: Mellen University Press, 1996.
• Guest, Stephen. Ronald Dworkin (Jurists: Profiles in Legal Theory). Stanford: Stanford University Press, 2012.
• Hershovitz, Scott, ed. Exploring Law's Empire: The Jurisprudence of Ronald Dworkin. Oxford: Oxford University Press, 2006.
• Hunt, Alan, ed. Reading Dworkin Critically. New York: Berg, 1992.
• Ripstein, Arthur, ed. Ronald Dworkin (Contemporary Philosophers in Focus). Cambridge: Cambridge University Press, 2007.
• Wesche, Stefen and Zanetti, Véronique, eds. Dworkin: Un débat. Paris: Ousia, 2000.

[edit] See also

• American philosophy
• Contributions to liberal theory
• Egalitarianism
• Legal indeterminacy
• Judicial activism
• Legal formalism
• Legal positivism
• List of American philosophers
• Equality

[edit] References

1. ^ ^{a b} The Associated Press. "LONDON: US legal scholar Ronald Dworkin dies in UK aged 81 - World Wires". MiamiHerald.com. http://www.miamiherald.com/2013/02/14/3233930/us-legal-scholar-ronald-dworkin.html. Retrieved 2013-02-14.
2. ^ "Ronald Dworkin". New York Review of Books. Nybooks.com. Accessed 29 September 2009.
3. ^ Shapiro, Fred R. (2000). "The Most-Cited Legal Scholars". Journal of Legal Studies 29 (1): 409–426. doi:10.1086/468080.
4. ^ Freedom's Law: The Moral Reading of the American Constitution. Ronald Dworkin. Cambridge, Mass.: Harvard University Press. 1996. Via Google Books.
5. ^ http://www.guardian.co.uk/law/2013/feb/14/ronald-dworkin
6. ^ "Ronald M. Dworkin - NYU School of Law - Overview". Its.law.nyu.edu. http://its.law.nyu.edu/faculty/profiles/index.cfm?fuseaction=cv.main&personID=19891. Retrieved 2013-02-14.
7. ^ "The professoriate", New College of the Humanities, accessed June 8, 2011.
8. ^ "Ronald Dworkin, Legal Scholar, Dies at 81". New York Times. http://www.nytimes.com/aponline/2013/02/14/world/europe/ap-eu-britain-obit-dworkin.html?partner=rss&emc=rss&smid=tw-nytimes&_r=0. Retrieved 14 February 2013.
9. ^ "Legal Positivism (Stanford Encyclopedia of Philosophy)". Plato.stanford.edu. 2003-01-03. http://plato.stanford.edu/entries/legal-positivism/. Retrieved 2013-02-14.
10. ^ "Oxford University Press: Constitutional Dilemmas: Lorenzo Zucca". Oup.com. http://www.oup.com/us/catalog/general/subject/Law/ConstitutionalLaw/?view=usa&ci=9780199204977. Retrieved 2013-02-14.
11. ^ Holberg Prize Academic Committee; Holberg International Memorial Prize 2007: Ronald Dworkin

[edit] External links

Wikimedia Commons has media related to: Ronald Dworkin

Wikiquote has a collection of quotations related to: Ronald Dworkin

• NYU Law Faculty profile
• UCL Faculty of Laws profile
• Ronald Dworkin obituary by The Guardian
• New York Review of Books archive
• "Ronald Dworkin - Mr Justice", The Times Literary Supplement, 5 December 2007
• "Interpretation and Coherence in Legal Reasoning" at the Stanford Encyclopedia of Philosophy
• "Interpretivist Theories of Law" at the Stanford Encyclopedia of Philosophy
• Charles Blattberg's critique of Dworkin and John Rawls for failing to take politics seriously enough.
• Ronald Dworkin at the Internet Movie Database

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Name	Dworkin, Ronald
Alternative names
Short description	Legal philosopher
Date of birth	1931-12-11
Place of birth	Providence, Rhode Island, United States
Date of death	2013-02-14
Place of death	London, England

   

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Dworkin Through Griceian Eyes

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Legal Disagreements and the Dual Nature of Law

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section 3) we consider how the ambiguities in Dworkin‟s reconstruction of legal ... cannot be properly explained by a theory that, like Hartian positivism, ...... Construction through Gricean Eyes”, in: P. Comanducci – R. Guastini, Analisi e Diritto ...

Dworkin and Grice contra Hart

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Andrei Marmor on Legal Positivism, Interpretation, and Easy ... - SSRN

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di P Chiassoni - 2008 - Citato da 2 - Articoli correlati
at odds both with the basic tenets of Hartian and Continental methodological legal positivism, on ... Herbert Hart argued that Dworkin's legal theory does not really pose any ..... tation (“radical interpretation”) and Paul Grice's theory of meaning, ...

Dworkian, Hartian -- Griceian

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The Vantage of Law: Its Role in Thinking About Law, Judging and ... - Pagina 180 - Risultati da Google Libri

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James Allan - 2011 - Law

Put differently, and more broadly, the relative attractions and weaknesses of Hartian and Dworkian theories depend to a significant extent on the reader's ...

Hart claims he is following H. P. Grice -- and he is.

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Hart claims that he is following H.P. Grice,

H. P. Grice, H. L. A. Hart, and Ronald Dworkin: jurisprudential implicatures

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Thomas Nagel reviews 'A Life of H.L.A. Hart' by Nicola Lacey · LRB 3 ...

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When I finished this book I was left wondering why H.L.A. Hart hadn't destroyed .... (2001), and Ronald Dworkin's essay 'Hart's Postscript and the Character of Political ... undermined by H.P. Grice, but nobody could say that about Wittgenstein.

Jurisprudence and Implicature: Dworkin and Grice

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T. Endicott, in the "Language and Law" entry for the Stanford Encyclopedia writes:

"Ronald Dworkin has opposed H. L. A. Hart's theory of law on
the basis that his whole approach to legal philosophy
is undermined or‘stung’ by his approach to words —
that he wrongly thought ‘that lawyers all follow
certain linguistic criteria for judging propositions of law’
(Dworkin 1986, 45)."

"That is Dworkin's ‘semantic sting’
argument, an argument in the philosophy of language
that has set an agenda for much recent debate in
philosophy of law (see, for example, the essays in Coleman, 2001)."

"It is Ronald Dworkin who has made [a semantic] question into a focus of jurisprudential debate."

"And Dworkin has framed the question as an objection to a misguided view of language, and of the relation between law and language."

"Dworkin begins his book "Law's Empire" by contending that many other theorists (including H. L. A. Hart) suffer from a‘semantic sting’"

""They ‘insist that lawyers all follow certain linguistic criteria for judging propositions of law’(Dworkin 1986, 32, 45).

"Dworkin claims that legal theories like H. L. A. Hart's cannot explain theoretical disagreement in legal practice, because they think that lawyers share uncontroversial tests provided by the conventional meaning of the word ‘law’ -- tests which Dworkin terms ‘criteria’ -- for the truth of propositions of law."

"The semantic sting is the misconception that the language of the law can be meaningful only if lawyers share such criteria."

"It is fatal to a legal theory, because it leads the theorist to think that people cannot have any deep (or‘substantive’ or ‘genuine’) disagreement about the law."

"They can only disagree about empirical questions (such as what words were used in a statute), or about how penumbral cases should be resolved, or about whether the law should be changed."

"Disagreeing about the criteria for application of the language of the law would be like using the same words with different meanings."

"People who disagree in that way are only talking past each other."

"Here is how Dworkin sets out the views of theorists who suffer from the semantic sting."

"They say that theoretical disagreement about the grounds of law must be a pretense because the very meaning of the word ‘law’makes law depend on certain specific criteria, and that any lawyer who rejected or challenged those criteria would he speaking self-contradictory nonsense."

"We follow shared rules, they say, in using any word."

"These rules set out criteria that supply the word's meaning."

"Our rules for using‘law’ tie law to plain historical fact."

"It does not follow that all lawyers are aware of these rules in the sense of being able to state them in some crisp and comprehensive form."

"For we all follow rules given by our common language of which we are not fully aware."

"We all use the same factual criteria in framing, accepting, and rejecting statements about what the law is, but we are ignorant of what these criteria are."

"Philosophers of law must elucidate them for us by a sensitive study of how we speak" -- what Grice calls, after Aristotle, 'ta legomena'.

They may disagree among themselves, but that alone casts no doubt on their common assumption, which is that we do share some set of standards about how ‘law’ is to be used."

"Philosophers who insist that lawyers all follow certain linguistic criteria for judging propositions of law have produced theories identifying these criteria."

Dworkin calls these theories collectively semantic theories of law.

"Semantic theories suppose that lawyers and judges use mainly the same criteria (though these are hidden and unrecognized) in deciding when propositions of law are true or false."

"They suppose that lawyers actually agree about the grounds of law."
(Dworkin, 1986b, 31–33)"

"Dworkin does not claim that we never share criteria for the application of a word."

"Rather, Dworkin says that there may be such shared, uncontroversial tests for the application of a word like‘book’."

"But he claims that words like ‘law’ (and presumably most legal terms) stand for ‘interpretive concepts’".

"The correct application of an interpretive concept is determined not by a shared test of applicability, but by the theory that gives the best interpretation of the practice in which the concept is used."

"The semantic sting argument is a claim that H. L. A. Hart applies criterial semantics generally to legal (and, incidentally, jurisprudential) concepts, in a way that makes real disagreement about the law impossible."

"Dworkin's idea that the concept of law is an interpretive concept is part of the underpinnings of his theory of law."

Dworkin claims that legal philosophy needs to make a fresh start to face the challenge of explaining disagreement about the law, and he presents his theory as the best way of meeting that challenge.

Any theory of law, he claims, needs to be a ‘constructive interpretation’of legal practice.

A constructive interpretation is one which simultaneously fits the facts of the practice (or other object of interpretation) and portrays it as a practice that achieves its purpose.

On this view a theory that does not present law as an exercise in constructive interpretation cannot even compete as a theory of law, because it suffers from the semantic sting."

"The semantic sting really does seem a gruesome fate for a lawyer, because those who suffer from it have to say that no one really disagrees with anyone about the law.

Whenever people think they disagree about how to identify the law on any point, that fact in itself demonstrates that there is nothing to disagree about.

Thereis no law on the point at issue, if the agreed ways of identifying the law do not decide the point.

So if you suffer from the semantic sting, you will conclude that sincere, competent lawyers will never disagree with each other. When an apparent disagreement arises, they will throw up their hands and say that there is no law on the point. If you suffer from the semantic sting, you will think that at least one party to any dispute over the content of the law is both legally inept and philosophically misguided, or is just a liar."

"Objections to Dworkin's diagnosis of Hart's work as suffering from a semantic sting are simple and compelling."

"Hart never says that people share complete and uncontroversial tests for the application of the language of the law, or specifically of the word‘law’, and to say such a thing would have thwarted his attempt to take advantage of Wittgenstein's Philosophical Investigations (Hart, 1994, 280, 297).

Hart denies that he ever suffered from the semantic sting (Hart 1994, 246).

Although he did claim that legal systems are based on rules of recognition, he did not say that those rules are linguistic rules, or that his theory is true because it states linguistic rules for the use of the word‘law’.

Neither he nor any other legal theorist has said that propositions of law are true if and only if they meet the uncontroversial tests of validity that people share in virtue of their knowledge of the meaning of the word ‘law’."

"Some legal theorists have held that there is no genuine disagreement about law, but they are theorists who are much more sceptical about the whole enterprise than Hart was.

Perhaps the semantic sting afflicts only those sceptics who think that it is impossible to agree or disagree about the law, and that it would be possible to agree about the law only if the conventional meaning of the word‘law’ gave us shared uncontroversial tests for the content of the law.

So the semantic sting argument does not undermine a theory of law like Hart's.

What it does, however, is to pose in an original and striking fashion a challenge that Dworkin has raised for any legal theory, and a challenge that Hart never took up: the challenge of explaining disagreement about the content of the law.

If an elucidation of the concept of law yields the insight that every legal system has rules of recognition, we might ask how it is possible for people to disagree about the content of the law.

Hart's official answer was that a rule of recognition need not be very complete.

Like other rules, it can be vague (Hart, 1994, 147–154, 251).

To Dworkin that is no answer.

If the task of a rule of recognition is to provide a way of identifying the law, the tests provided need to be complete and uncontroversial, or there is no shared way of identifying the law."

"But Hart did not take so high a view of his own theory's need to provide a certain and complete answer to all questions of law.

Suppose that a rule of recognition identifies a legislature as having law-making power.

That, to Hart, was enough to expect of a rule of recognition.

It is a very common sort of rule of recognition, and it may leave many unanswered questions (as to how to interpret an act, and as to the limits of the power).

But in Dworkin's view, it is no rule of recognition at all.

And there is no rule of recognition in such a community unless (at least)

(i) the members of the community also share uncontroversial techniques of legal interpretation that answer all questions of how an act is to be interpreted, and

(ii) any limits on the power of the legislature are uncontroversial.

Since many legal systems have legislatures whose powers are not clearly delimited, and since no community has an uncontroversial shared set of canons of statutory interpretation that answer all questions of interpretation, it is quite plausible to say that no legal system has a rule of recognition on Dworkin's understanding of such a rule.

If that is the best understanding of a rule of recognition, then Dworkin's argument succeeds against Hart's theory of law. It succeeds not because Hart suffered from a semantic sting (there is still no reason to attribute to his theory the view that rules of recognition exist because they are required by linguistic criteria for use of the word ‘law’). It succeeds because it shows that Hart's theory cannot explain what makes a statement of law true or false.

If, on the other hand, it is right to characterize an ordinary rule granting lawmaking power as a social convention that identifies the law of the community, then Dworkin's argument fails.

Hart can explain disagreement about the content of the law, by saying that the rule of recognition may require the participants in legal practice to apply a test that is very controversial: they must decide (and may dispute) how to interpret the acts of the legislature, and it may be unclear (and controversial) in some cases whether the legislature has the power that it claims to have exercised. If such a practice can be well described as a rule-governed practice for the identification of valid laws, then Hart has established his basic claim that there are rules of recognition."

"But on Dworkin's view, conceiving of a rule of recognition as a very incomplete way of answering questions of law would still not explain disagreement: it would simply mean that there is no answer to most legal questions. So in order to meet Dworkin's challenge, Hart would have to show not only that rules of recognition (and other rules) may be vague, but that it can be reasonable to disagree over the application of such rules."

"Think of a disagreement of the kind that divided the magistrates and the appeal court in Garner v Burr [above, section 2.2]. It would not be enough for Hart to say that there is no determinate law on the question of whether Lawrence Burr's chicken coop counted as a 'vehicle' for the purpose of the Road Traffic Act. To meet Dworkin's challenge, it would be necessary to explain how competent and (let's presume) sincere and reasonable adjudicators can differ (as they often do) on the question of what the law allows or prohibits.

That fact about Dworkin's challenge shows that there is a connection between his semantic sting argument and his view that there is a single right answer to virtually every legal dispute. Someone who suffers from the semantic sting is bound to think, on false grounds, that there are indeterminacies in the law when people disagree in applying the language of the law.

Dworkin's argument makes room for his single right answer thesis. It concludes that in any unclear case of the application of an interpretive concept, the question of whether the concept applies or not is to be answered by arguments concerning the view that best fits and justifies the object of interpretation. The question cannot be sidestepped by a peremptory conclusion that the question has no answer because of the vagueness of the concept. It should be noted, however, that even if it is successful, the semantic sting argument does not give reason to accept Dworkin's right answer thesis. One mistaken way to disagree with the right answer thesis would be to think that there is no right answer to a question of law unless uncontroversial shared tests resolve the question. Avoiding that mistake does not mean concluding that there is a single right answer to every question of law."

"Dworkin's semantic sting argument is aimed against a certain attempt (which he considers Hart to have made) to apply philosophy of language in legal and political philosophy. But note that his objection to Hart's theory of law could be framed differently, without mentioning semantics or language at all: it is an argument that Hart was wrong to think that participants in a legal system share a rule of recognition, in the sense of an agreed way of deciding what rules are valid under the law of their community. Instead of opposing the misconception that the language of the law can be meaningful only if lawyers share criteria for the truth of statements of law, Dworkin could oppose the misconception that the members of a community can make legal judgments only if they share uncontroversial tests of legal validity that exhaust the grounds on which such judgments are legally justified."

"Nicos Stavropoulos has restated the semantic sting argument as an argument against a ‘traditional semantic theory’ that he calls the ‘Criterial Model’ (Stavropoulos 1996).

The Criterial Model holds that the content of some or all of the concepts used in legal practice, like ‘contract’ (and including the concept of law), is specified by a set of shared beliefs of users of the concept, which provide ‘criteria’ (in Dworkin's sense of the term) for the application of the concept.

Stavropoulos offers an alternative understanding of the content of such concepts, borrowing eclectically from Dworkin and from Saul Kripke, Hilary Putnam, and Tyler Burge.

He views the main concepts of legal discourse as referring to real properties, so that it is the task both of theorists and of lawyers to identify those properties, and there is room for ‘substantive disagreement’ over the nature of those properties.

Just as ‘Aristotle’ refers to Aristotle, and ‘water’ refers to water, and‘arthritis’ refers to arthritis (instead of referring to whatever has a set of properties that speakers believe Aristotle, water, or arthritis to have), a legal concept like‘contract’ refers to contracts (instead of referring to whatever has a set of properties that speakers believe contracts to have).

The content of those concepts is given by the real properties of the things that people use the words to designate (i.e. the properties of Aristotle, of water, of arthritis, and of contracts). The content of such concepts is not determined by the (more or less mistaken, and more or less shared) views about those properties that users of the words have in mind."

"Like Dworkin, Stavropoulos uses the linguistic or‘semantic’ mode, treating a legal dispute, such as whether an agreement is a contract, as a dispute over whether the concept ‘contract’applies to an agreement.

Stavropoulos treats Hart (and others) as having a semantic theory for the concept of a contract which is defective because it takes the content of the concept to be determined by shared beliefs or ‘criteria’.

But Hart doubtless would have viewed disputes over alleged contracts as disputes over the application of the rules at a time in a jurisdiction for contract formation, or concerning the legal effects of misrepresentation, mistake, or frustration, etc.; in the view of a theorist like Hart, a contract is simply an agreement made enforceable (or valid for purposes other than enforcement) by the rules of the legal system (and enforceable in ways determined by those rules).

Such a theorist might claim that there is no disagreement over the content of the concept (the members of the community agree in understanding a contract as an agreement that is enforceable according to law). But this agreement concerning the concept may leave a great deal of disagreement over whether particular transactions count as enforceable agreements."