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David Plunkett and Timothy Sundell, Dworkin’s Interpretivism and The Pragmatics of Legal Disputes, 19 Legal Theory 242 (2013).

Ronald Dworkin famously claimed, in Law’s Empire, that law is an “interpretive concept.” Dworkin’s argument for this claim appealed to a certain type of legal disagreement, what he called “theoretical disagreement.” Theoretical disagreements, he maintained, are genuine disagreements in which parties share the same concept but differ in their application of the concept because they interpret shared practices differently.

David Plunkett and Timothy Sundell provide a close examination and illuminating critique of Dworkin’s argument for the claim that law is an interpretive concept in Dworkin’s Interpretivism and the Pragmatics of Legal Disputes. Their focus, however, is on Dworkin’s broader discussion of interpretive concepts in Justice for Hedgehogs (JFH) and his disagreement-based argument for intepretivism.

In Justice for Hedgehogs, Dworkin distinguishes interpretive concepts from “natural-kind concepts,” which pick out natural kinds, and “criterial concepts,” the meaning of which is given by defining criteria. Whether something satisfies a criterial concept, such as the concept book, is a matter of whether it meets the defining criteria; and disagreement, where a criterial concept is in play, concerns whether the defining criteria are met. The correct application of interpretive concepts, in contrast, is not a matter of applying defining criteria. They are concepts we share, not because we use the same criteria, but because we share social practices in which these concepts figure. (JFH 6.)

As in Law’s Empire, Dworkin offers a disagreement-based argument for interpretive concepts in Justice for Hedgehogs. Plunkett and Sundell argue that Dworkin’s disagreement-based argument for interpretivism fails; and they defend an alternative account of the kinds of disputes—legal and nonlegal—that interested Dworkin.

As Plunkett and Sundell summarize Dworkin’s disagreement-based argument, they begin with a distinction between two types of legal disputes about the law in a particular jurisdiction. In the first type, parties to the dispute agree about the conditions for being law in that jurisdiction but differ as to whether they are met. In the second type, the parties agree about the relevant empirical facts but disagree about what the law is. Plunkett and Sundell call the latter “bedrock legal disputes.” Dworkin argued, with respect to such disputes, that if we take the meaning of ‘law’ to be given by the rules legal actors follow in using the term, we would have to conclude that parties to a dispute mean different things and so do not genuinely disagree. But since they sometimes clearly are disagreeing, they must mean the same thing by ‘law,’ even though they are not following the same rules in applying the term. The content of the concept and its correct application therefore cannot be fixed by defining criteria. Instead, Dworkin contends, law is an interpretive concept, correct application of which is fixed “by the normative or evaluative facts that best justify” our legal practices. (P. 244.) This account of bedrock legal disputes allows parties to a dispute to share the same concept, while disagreeing about what the law is. Bedrock legal disputes are thus best understood as theoretical disagreements, disagreements in which parties share a concept, while disagreeing in their usage, hence, in their views about when to apply the term that expresses that concept.

As Plunkett and Sundell explain, in Justice for Hedgehogs, Dworkin expands his interpretivism to various legal, moral, and political concepts, such as freedom justice, and democracy, and even to some concepts that appear straightforwardly descriptive, such as book. What disputes employing these concepts have in common with bedrock legal disputes is that they are all disputes in which the parties disagree deeply, yet we are not inclined to conclude that they are merely talking past one another. Parties to such disputes persist, even when they become aware of all the relevant empirical facts, as well as of their divergent applications of terms. Plunkett and Sundell call this class of disputes “seeming conceptual variation cases” (“seeming variation cases” for short), because ordinarily we would conclude that there is semantic variation in such cases.

It is Dworkin’s argument schema—the disagreement-based argument type—that comes in for Plunkett and Sundell’s central criticism. They take issue with Dworkin’s views not only about interpretive concepts, but also about noninterpretive concepts. (P. 254.) As they rightly complain, “Dworkin hasn’t given us a good theory of exactly what interpretive concepts are.” (P. 255.) They contend further that the disagreement-based argument fails because it rests on a flawed premise, namely, that “the best way to explain how an exchange between two speakers serves to express a genuine disagreement is, in almost all circumstances, to suppose that those speakers mean the same thing—that is, express the same concepts—with the words they use in that exchange.” (P. 246.) Dworkin is mistaken, they contend, to think that shared meanings best explain how a dispute can express a genuine disagreement.

While Plunkett and Sundell agree with Dworkin about the existence of bedrock legal disputes and, more generally, seeming variation cases, they disagree about how to account for them. They argue that the disputes of interest to Dworkin are best explained as involving “metalinguistic negotiations.” In metalinguistic negotiations, speakers use the same term to express different concepts and are engaged in negotiation, pragmatically advocating about which concepts should be used. Consider disputes about whether the racehorse Secretariat was an athlete or whether waterboarding is torture. Speakers in such disputes express different concepts using the terms ‘athlete’ and ‘torture’ and negotiate which concepts to use and how to use language. Nevertheless, the disagreements are genuine and serve a purpose.

Plunkett and Sundell move beyond bedrock legal disputes to apply their account to “hard cases.” Consider legal disputes over whether a drug trafficker who trades firearms for illegal drugs is “using” the gun or whether a law that there be no vehicles in the park applies to use of a riding lawn mower. (P. 269.) According to Plunkett and Sundell, “disputes about such issues have exactly the sorts of features that make them ripe for analysis as a metalinguistic negotiation. The speakers involved are by and large mutually aware of all the relevant nonlinguistic facts… And it is at least plausible that there is no antecedently settled matter of fact about the meaning.” (P. 269.) Parties to the dispute are familiar with what a riding lawn mower is like, for example; they differ as to whether it counts as a “vehicle.”

Plunkett and Sundell maintain that the idea that bedrock legal disputes are best analyzed as metalinguistic negotiations vindicates Dworkin’s thought that “they involve a disagreement about a topic that is worth arguing about.” (P. 268.) And that idea does so without the theoretical cost of introducing a whole new category of concepts or relying on a controversial typology of concepts. In addition, unlike Dworkin’s appeal to interpretive concepts, an explanation of bedrock legal disputes that appeals to metalinguistic negotiations remains neutral between positivism and non-positivism about law.

Readers may be more persuaded by Plunkett and Sundell’s negative case against Dworkin’s interpretivism than by their positive alternative for explaining bedrock legal disputes. But their proposal is intriguing and may prove fruitful to legal theorizing beyond accounting for certain disagreements about law.

This article should be of serious interest not only to Dworkin scholars but to those working in analytical jurisprudence more generally, and not only for its detailed and enlightening examination of Dworkin’s interpretivism. Plunkett and Sundell are among a small number of philosophers working at the intersection of metaethics and philosophy of law. In this article, they bring tools from the philosophy of language to bear on Dworkin’s ideas, revealing difficulties for those ideas that might otherwise be missed. The article thus nicely illustrates the benefits of drawing on what might seem to be remote areas of philosophy to address central problems in analytical jurisprudence.

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Cite as: Connie Rosati, Dworkin’s Interpretive Concepts v. Metalinguistic Negotiations, JOTWELL (December 10, 2014) (reviewing David Plunkett and Timothy Sundell, Dworkin’s Interpretivism and The Pragmatics of Legal Disputes, 19 Legal Theory 242 (2013)), https://juris.jotwell.com/dworkins-interpretive-concepts-v-metalinguistic-negotiations/.