Dworkin’s Literary Analogy

For decades Ronald Dworkin defended the view that legal interpretation is constructive. One of his most fascinating arguments for this idea, which turns on an analogy between legal and literary interpretation, has been more or less ignored by philosophers of law—probably because they have not been especially interested in the claims about literary interpretation that it presupposes. This chapter explores Dworkin's analogical argument with the sensitivity it deserves, and with particular attention to its controversial ideas about the interpretation of literature. The chapter evaluates the implications of Dworkin’s analogy for his overall anti-positivist project, and for one’s thinking about legal interpretation more generally.

How to Argue for Law’s Full-Blooded Normativity

This chapter aims to make space for the view that law possesses full-blooded normativity in a top-down way. Here is the dialectic of the inquiry: What would have to be true of morality for the claim that some specific practice is full-bloodedly normative to be plausible? The chapter assumes that the practice of morality as a whole has full-blooded normativity in the sense that its requirements give one genuine reasons to act, irrespective of one’s subjective wants, desires, and beliefs. The focus is on what it means to say of a specific practice that it partakes of morality’s normativity. The reason is simple: it should be an open question whether this or that practice has full-blooded normativity. For if it is not possible for any particular practice to have full-blooded normativity, then the question of whether law has full-blooded normativity would make no sense from the get-go. The account put forward builds on the idea of obligations of role. A practice, has full-blooded normativity when it instantiates a distinct set of obligations, one that pertains to people in a particular capacity, such as friends, parents, doctors, or teachers. The proposition that there are distinct moral practices, which are not reducible to a single moral concern, is of course disputed territory in moral philosophy. But if this proposition is accepted, one can ask, by analogy, whether legal practice instantiates an obligation of role and, as a result, bears the attributes of full-blooded normativity. This way of proceeding perceives the relationship between law and metaethics differently: it shows that law’s claim to full-blooded normativity ultimately depends on contestable assumptions about the nature of morality as a whole.

Of Law and Other Artificial Normative Systems

How should the normative landscape and law’s place within it be conceptualized? On the face of things, people navigate a multiplicity of independent artificial normative systems—legal systems, sports, games, etiquette, fashion, families, and so forth—that are of their own making and that deliver and maintain rules and oughts that are only ‘formally’ normative and may conflict. In recent years, however, several prominent legal philosophers, Ronald Dworkin most notably, have advocated some version of a ‘one-system picture’ according to which appearances deceive, and we inhabit just a single domain of ‘real’, ‘genuine’, or ‘robust’ normativity. This chapter presents an alternative picture that aims to vindicate, rather than to refute, outward appearances—an alternative picture that, it is claimed, reflects background assumptions that legal positivists widely share but that is oddly marginalized, nearly invisible, in the current legal philosophical literature. It has three main ambitions: to surface and sharpen the central features of this ‘standard positivist picture’, to make sense of H. L. A. Hart’s own complex and shifting relationship to that picture, and to isolate and critically evaluate arguments advanced by one-system theorists that purport to show that such a picture is circular or eliminable. The chapter concludes by suggesting possible lessons that legal philosophers might learn by paying more systematic attention to the broader universe of artificial normative systems in which law is situated.

Robust Normativity, Morality, and Legal Positivism

This chapter discusses two different issues about the relationship between legal positivism and robust normativity (understood as the most authoritative kind of normativity to which we appeal). First, the chapter argues that, in many contexts when discussing “legal positivism” and “legal antipositivism”, the discussion should be shifted from whether legal facts are ultimately partly grounded in moral facts to whether they are ultimately partly grounded in robustly normative facts. Second, the chapter explores an important difference within the kinds of arguments that legal philosophers give for the (purported) truth of legal positivism. The difference concerns whether (purportedly) robustly normative facts are appealed to as premises in those arguments or not. (A closely connected issue is whether (purportedly) normative facts that bear one or more important connections to robustly normative facts are appealed to in premises to those arguments.) The chapter argues that thinking about this dividing line helps people better situate the positivist/antipositivist dispute, better understand the space of views in legal philosophy, better evaluate those views, and avoid having merely verbal disputes.

Defining Normativity

This chapter aims to clarify debate over the nature, existence, extension, and analyzability of normativity, by investigating whether different philosophers’ claims are about the same subject or (as argued by Derek Parfit) they are using the terms ‘normative’ and ‘normativity’ with different meanings. While it is suggested that the term may be multiply ambiguous, reasons are identified for optimism about a common subject-matter for metanormative theory. This is supported by sketching a special hybrid view of normative judgment, perspectivism, that occupies a position between cognitivism and noncognitivism, naturalism and nonnaturalism, objectivism and subjectivism. Three main fissures are explored: between (i) the “normativity” of language/thought versus that of facts and properties, (ii) abstract versus substantive normativity, and (iii) formal versus robust normativity.

“We’ll see you in court!”

Is there a distinctive normative force of law itself, as opposed to whatever moral or prudential reasons might speak on behalf of law? Answering this question requires attention to law as a distinctive kind of social scheme, which limits the number of degrees of freedom in interpersonal interactions and thereby structures expectations and practices in ways that create “opportunity paths” that would not otherwise exist. Such rule by law can be given a purely instrumental, external normative ground, as Hobbes argued. However, as he also argued, rules are not self-enforcing, so that the well-functioning and stability of a system of rule by law depends upon broad social presence of an array of evaluative attitudes that could robustly sustain playing one’s part in a scheme of self-constraint and mutualconstraint—rule by law as an explanatory kind. An expansion of these constraints to include those in power can underpin rule of law, giving it distinctive social dynamics as well as a distinctive character as a normative kind distinct from morality or prudence, and help explain why certain human rights have been viewed as part of the rule of law.

Theoretical Disagreements in Law: Another Look

In “Explaining Theoretical Disagreement” (2009), the chapter’s author defended an answer to Ronald Dworkin’s argument that legal positivists cannot adequately explain disagreements among judges about what the criteria of legal validity are. This chapter responds to a variety of critics, in particular, Kevin Toh. It argues that Toh misrepresents H. L. A. Hart’s own views, and misunderstands the role of "presupposition" in both Hart and Kelsen. The chapter further argues that a correct reading of Hart is compatible with the error-theoretic interpretation of theoretical disagreement the author defended in 2009.

Legal Teleology

Legal Teleology seeks to embrace and to ground the most plausible tenets of both legal positivism and natural law theory. It is compatible with the positivist view that law consists at root in a social practice of a certain kind. Yet it also can accommodate at least some claims about the relation between law and morality that are advocated by opponents of positivism. Most important, it argues that law is “robustly normative”—roughly, law is a source of genuine reasons. Standard forms of positivism cannot account for this thesis, but, arguably, the central doctrines of positivism are compatible with it. Legal Teleology is an account of the normativity of law that is supported by “pluralist-teleology,” a naturalist account of normativity that has been proposed elsewhere (Copp 2009). Legal Teleology sees the law as having a purpose, and it says that law is defective insofar as it does not further that purpose. It agrees that jurists can sometimes help law better to serve its purpose when they invoke moral principles in interpreting law. Legal Teleology represents a kind of intermarriage between legal positivism and natural law theory.

Normativity in Language and Law

This chapter develops an account of the meaning and use of various types of legal claims, and uses this account to inform debates about the nature and normativity of law. The account draws on a general framework for implementing a contextualist theory, called Discourse Contextualism (Silk 2015a, 2016, 2017). The aim of Discourse Contextualism is to derive the apparent normativity of claims of law from a particular contextualist interpretation of a standard semantics for modals, along with general principles of interpretation and conversation. Though the semantics is descriptivist, it avoids Dworkin’s influential criticism of so-called “semantic theories of law,” and elucidates the nature of “theoretical disagreements” about the criteria of legal validity. The account sheds light on the social, interpersonal function of normative uses of language in legal discourse. It also gives precise expression to Hart’s and Raz’s intuitive distinctions among types of legal claims (internal/external, committed/detached). The proposed semantics and pragmatics of legal claims provides a fruitful framework for further theorizing about the nature and metaphysics of law, the relation between law and morality, and the apparent practical character of legal language and judgment. Discourse Contextualism provides a solid linguistic basis for a broader account of legal discourse and practice.

Hybrid Dispositionalism and the Law

Dworkin’s famous argument from legal disagreements poses a problem for legal positivism by undermining the idea that the law can be (just) the result of the practice and attitudes of norm-applying officials. In recent work, the chapter author argued that a hybrid contextualist theory paired with a dispositional theory of value—a hybrid dispositionalism, for short—offers the resources to respond to similar disagreement-based arguments in other evaluative and normative domains. This chapter claims that the theory the author advocates can extend to legal statements and disputes, and shares some important features with Toh’s (2011) idea that legal statements express shared acceptance of norms. The chapter proposes that a contextualist semantics for legal statements paired with the pragmatic communication of implicatures that express shared acceptances of norms, achieves the same goal that Toh aims at.