Abstract
The present article aims to show how the contemporary legal philosophy became centred on a methodological debate and how Ronald Dworkin’s thinking holds a central position in this debate. Dworkin argues that law is an interpretive concept, ie., that it requires an interpretive attitude towards its object. Thereafter, the analogy between chess and law is misleading and inappropriate, precisely for its inability to capture the interpretive dimension of law. As an alternative, Dworkin offers a different analogy, with the interpretive practice of courtesy. With a few changes from how Dworkin presents it, the author describes an argument to help illustrate how interpretive activity for “interpretive concepts” takes place. The development of the interpretive theory of law, as formulated by Dworkin, leads to a refutation of countless conventionalist theories of meaning and introduces a theory of controversy. He understands that conventionalism and the semantic sting are two core elements of the methodological failure that legal positivism represents. Law is an argumentative practice, its meaning as a normative practice depends on the conditions of truth of the argumentative practices that constitute it. Hence. it is impossible to engage in such a practice with archimedean viewpoints external to the interpretation itself. External skepticism towards interpretation is unrealistic in face of the inevitability of the interpretive engagement. The interpretive practice is established through three stages of interpretation: the pre-interpretive, the interpretive and finally the post interpretive or reforming stage. All of them share the purpose of unveiling the meaning of the point of law’s interpretive practice. Dworkin answer his critics masterfully while incorporating central questions of contemporary philosophy in his theory and thereby, sets a paradigm for and illustrates the theoretical-philosophical problems that have been center-stage in recent years.
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Notes
- 1.
Another exclusivist positivist might be added to the group: (Marmor 2006). In this intriguing essay, Marmor – after defending a complex conventionalist theory of the rules of the legal game that involves deep conventions and surface conventions – writes: “As Hart himself seems to have suggested, the rules of recognition are very much like the rules of chess: they constitute ways of creating law and recognizing it as such. Once again, it is not my purpose to deny that the rules of recognition solve various coordination problems. They do that as well. It would be a serious distortion, however, to miss their constitutive function. The rules that determine how law is created, modified, and recognized as law, also partly constitute what the law in the relevant community is. They define the rules of the game, thus constituting what the game is. […] Let me sum up: the conventional foundation of law consists of two layers. There are deep conventions that determine what law is, and those deep conventions are instantiated by the surface conventions of recognition that are specific to particular legal systems. The concept of law is constituted by both layers of conventions. Our concept of law partly depends on the deep conventions that determine what we take law and legal institutions to consist in, and partly on the specific institutions we have, those that are determined by the rules of recognition. Basically, this is just like chess. Without the rules of chess, we would not have a concept of chess. But we can only have such a concept, because we already possess the deeper concept of playing competitive games, of which chess is just one instance. Both are profoundly conventional, and in this general insight, I think that Hart was quite right.”, my italics.
- 2.
Dworkin, in his essay on Lon Fuller, makes clear the difference, not always recognized by theorists of law, between the conventional moral dimension and the proper moral dimension. Commenting on the text of Lon Fuller on the inner morality of law, he notes that: “the canons of morality, of course, are criterial standards; they are addressed to those who make moral judgments or arguments and govern their success or failure. Like the canons of law, they may also be pertinent to the question of whether someone has behaved morally or immorally. If I harm you in some way, claiming myself justified because you broke some alleged moral rule which I invoke, then the fact that this ‘rule’ is self-contradictory or impossible to observe might count as a step in showing that what I had done was morally improper. But a failure to comply with the canons of morality is not, as such and for that reason, a moral fault […]”. By not using this distinction and using a merely criterial concept of morality, Fuller was falling to a categorial mistake that in later texts Dworkin (notably, Dworkin 2006a, b) would emphasize: : “If so, he is guilty of two confusions. First, and less important, he confuses related but not identical legal and moral standards. Second, and more important, he confuses criterial standards directed at determining whether some act has succeeded in producing a moral criticism, or a moral argument, with standards stipulating whether some act is moral or immoral, praiseworthy or blameworthy in character. If he is to establish his claim that compliance with the canons constitutes moral behavior, he must show his canons of law to be moral standards of the latter sort, instead of or as well as the former sort.” (Dworkin 1965, 685–686, highlighted by me).
- 3.
Guest also observes a similar point when he asserts: “The fastest way to the interpretive concept s is through the idea of something ‘having an intentionality’ (point). Note that we can describe a practice without making any statement about the meaning or purpose of the practice. Thus, a purely descriptive report of chess game can take various forms, for example, in its simplest form, “pushing pieces on a board of wood” or, in a more refined one, ‘move pieces of wood in accordance with a set specific rules’. A description like this tells us that this is chess, instead of saying that is, let’s say, checkers, but fails to describe what many of us might consider some of the vital features of the game. Were we short of a ‘true’ description here? Is anything else necessary? What additional ingredients would be required to make the description of the ‘chess game’ an adequate or ‘true’ description? What would make people happy? If I provide the details of the rules and then say that the sense of the game was to win, many people would agree. But I could, as many people do, go ahead and say that it is an intellectual game, which requires only intellectual strategies, no strategy how to make an opponent lose by disturbing him with the use of a false board, for example. Or I could say that point of chess is the development of intellectual skills of the players and that victory was only incidental to that purpose. I could, in other words, offer many descriptions of the ‘real’ point of chess. Dworkin does not analyze the idea of in-depth description. For him, I think, it refers to a level of description that incurs relatively little controversy. He provides an example of a social practice of courtesy, to bow before a superior.” (Guest 2010 31–32, highlighted by me).
It is noteworthy, however, that the assignment of an evaluative “point” to chess game somehow removes this practice of our clearest mental picture about it, since we usually imagine this game as an agreement between players without associating an evaluative “point”. Andrei Marmor seeks to identify deep conventions presupposed in this practice. However, even if he is correct they only report the values (playing a good game) as conventional criteria of moral evaluation and not as moral evaluations per se (Marmor 2006).
- 4.
(Dworkin 1986, 46–49, 68 et seq.) In Dworkin (1986), the author examines another situation (language game) involving a debate about the objectivity of an aesthetic judgment on a novel by Agatha Christie. I explored a similar example concerning a dispute between friends about the aesthetic qualities of “action movies” Rambo IV and Clockwork Orange in (Macedo Jr. 2010).
- 5.
- 6.
(Dworkin 1986, 53): “But we should notice in passing how the constructive account might be elaborated to fit the other two contexts of interpretation I mentioned, and thus show a deep connection among all forms of interpretation. Understanding another person’s conversation requires using devices and presumptions, like the so-called principle of charity, that have the effect in normal circumstances of making of what he says the best performance of communication it can be. And the interpretation of data in science makes heavy use of standards of theory construction like simplicity and elegance and verifiability that reflect contestable and changing assumptions about paradigms of explanation, that is, about what features make one form of explanation superior to another. The constructive account of creative interpretation, therefore, could perhaps provide a more general account of interpretation in all its forms. We would then say that all interpretation strives to make an object the best it can be, as an instance of some assumed enterprise, and that interpretation takes different forms in different contexts only because different enterprises engage different standards of value or success.” The theoretical framework used by Dworkin are the works of Thomas Kuhn, specially (Kuhn 1962).
- 7.
- 8.
(Dworkin 1986, 13): “Every actor in the practice understands that what it permits or requires depends on the truth of certain propositions that are given sense only by and within the practice”.
- 9.
- 10.
There is an inevitable hermeneutic circularity on Dworkin’s thought, insofar as in an interpretative activity about an interpretative concept, we cannot lie completely outside the hermeneutic game. There isn’t an exterior to the interpretation , an outsider’s look, an Archimedean’s point of view that allows us to describe from the outside of and interpretive enterprise carried on in these situations. That does not exclude, however, the possibility of a hermeneutics’ sense of action that is exterior to the practice, as it was conducted by Weber. This path, however, does not lend itself to the interpretation of interpretative concepts, governed by a distinct “logical grammar”. Cfr. (Dworkin 2011, 123 et seq.); (Dworkin 1986, 53 et seq.); (Guest 2010 29 et seq.) On hermeneutic circularity, compare : “In any case, we can enquire the consequences that sciences” of the spirit’s hermeneutics will suffer from the fact that Heidegger derives fundamentally the circular structure of comprehension from the temporality of pre-sence. Those consequences do not need to be such, as if it applies a new theory to praxis and this last one is exerted in the end, in a different manner, in accordance with its art. They could also consist that the self comprehension constantly exerted has been corrected and depurated art of comprehension. That is why we will turn ourselves back into Heidegger’s description about the hermeneutical circle, with the purpose of turning our own purpose into something fecundated the new and fundamental meaning that the circular structure gains here. Heidegger writes: “The circle must not be degraded to a vicious circle, even if it is a tolerated one. Inside of it veils a positive possibility from a more original knowledge that, obviously, will only be comprehended from an adequate manner, when the interpretation comprehends that its first, constant and last task remains being not receiving beforehand, by one ‘happy idea’ or by popular concepts, nor the previous position, nor the previous vision, nor the previous conception (Vorhabe, Vorsicht, Vorbegriff), but to assure a scientific theme in the elaboration of these concepts from the thing, itself (Heidegger 1989).” (Gadamer 2002. v. 1, 400). On the theoretical-juridical field this vision holds certain resemblance with the thoughts of Ernest Weinrib, who also recognizes certain circularity in the hermeneutical thought that goes “[…] from the law’s content to the juridical immediate comprehension of this content, to an implied form in this comprehension, to the explicit elucidation of that form, to the test of the content’s adequation to its form now explicit.” (Weinrib 1988, 974).
- 11.
Stephen Guest enlights the conviction’s concept rol in Dworkin’s interpretativist model: “If you cannot believe in something, repeatedly and fully, you must believe in it. Not […] because your beliefs argument on its own truth, but because you cannot find any other argument that is a decisive refutation of a creed that it isn’t even capable of harming. In the beginning and in the end, there is the conviction.” (Guest 1997, 27, 169). See also (Dworkin 2011, 68–70; 153–154).
- 12.
- 13.
For example, Carl Schmitt. I have developed this subject in (Macedo Jr. 2011).
- 14.
See “How law is like literature”, in (Dworkin 1985, 160).
- 15.
- 16.
- 17.
Dworkin is a public intellectual and he develops moral and juridical analysis on several themes that occupy the Americans’ debate agenda, such as abortion, euthanasia (dominion), affirmative actions, pornography, freedom of speech (Dworkin 1985, 1996a, 2000); yonder general political philosophy themes, such as iguality, freedom, individual responsability (Dworkin 2011), over and above several articles directed to a more ample public, published in New York Review of Books. A complete bibliography of Dworkin’s work until 2005 can be found in (Burley 2005).
- 18.
According to Stavropoulos, “‘The first is the assumption that the practice of courtesy does not merely exist but has value, that it serves some interest or purpose or enforces some principle—in short, that it has some point—that can be stated independently of just describing the rules that make up the practice. The second is the further assumption that the requirements of courtesy—the behavior it calls for or the judgments it warrants—are not necessarily or exclusively what they have always been taken to be but are instead sensitive to its point, so that the strict rules must be understood or applied or modified or qualified or limited by that point’. Dworkin’s two components capture two independent conditions, both of which must be satisfied. It is not enough that the practice be thought to serve some value (which would satisfy the first condition); further, the value must be taken to be constitutive of the practice, which is what the second condition amounts to. Together, the conditions have important consequences in respect of the practice’s character.” (Stavropoulos 2003). The quote within the quotation are from Dworkin (1986, 47).
- 19.
Dworkin himself refers to cortesy as na example of interpretative practice. I’ve rather qualify this example in the form of men’s cortesy to women by understanding that it would gain more “didatical strength”.
- 20.
See (Wittgenstein 2009, § 593): “A main cause of philosophical disease—a one-sided diet: one nourishes one’s thinking with only one kind of example”.
- 21.
An analysis on the concept of coherence and its relationship with the concepts of truth and law in Dworkin and Maccormick is presented by (Schiavello 2001, 233–243). Ernest Weinrib also shares a coherentist conception of truth. For him, “the reason coherence functions as the criterion of truth is that legal form is concerned with immanent intelligibility. Such an intelligibility cannot be validated by anything outside itself, for then it would no longer be immanent. Formalism thus denies that juridical coherence can properly be compromised for the sake of some extrinsic end, however desirable” (Weinrib 1988).
- 22.
This point is important because it usually causes a lot of confusion. One thing is to affirm that there is no right answer to some question. Another one, distinct, is to affirm that we are not sure what the right answer is. Therefore, for example, we cannot be sure whether the ‘Big Bang’ occurred over eight billion years ago. However, even if it is slightly likely that we come to the certainty about such fact, we do not doubt the existence of a right answer to that matter. There are cases, nevertheless, in which we doubt the very existence of a correct answer, and not only about our certainty about what it consists in. Hart believed he had indicated, with his renowned example about not parking a vehicle in the park, such a situation. For Hart there is not a correct answer on considering or not a toy scooter a vehicle, since the rule that enunciates the prohibition is formulated through a language that possesses an open texture and, therefore, undetermined. In such case what we have is not the uncertainty or the doubt about the right answer, but the conviction that it does not exist. It is oblivious that a theory on truth that understands that correction is a synonym of certainty would not make such a distinction. However, our use of the language in general and in moral language suggests that this is a relevant distinction. About this point see Wittgenstein (1972).
- 23.
This episode is remembered by Dworkin himself in Dworkin (2011, 37–38), where he explores again the question about the possibility of an external justification for a moral interpretation . “When are we justified in supposing a moral judgment true? My answer: when we are justified in thinking that our arguments for holding it true are adequate arguments. That is, we have exactly the reasons for thinking we are right in our convictions that we have for thinking our convictions right. This may seem unhelpful, because it supplies no in de pen dent verification. You might be reminded of Wittgenstein ’s newspaper reader who doubted what he read and so bought another copy to check. However, he did not act responsibly, and we can. We can ask whether we have thought about the moral issues in the right way. What way is that? I offer an answer in Chap. 6. But I emphasize there, again, that a theory of moral responsibility is itself a moral theory: it is part of the same overall moral theory as the opinions whose responsibility it is meant to check. Is it reasoning in a circle to answer the question of reasons in that way? Yes, but no more circular than the reliance we place on part of our science to compose a theory of scientific method to check our science. These answers to the two ancient questions will strike many readers as disappointing. I believe there are two reasons for this attitude, one a mistake and the other an encouragement. First the mistake: my answers disappoint because the ancient questions seem to expect a different kind of answer. They expect answers that step outside morality to find a nonmoral account of moral truth and moral responsibility. But that expectation is confused: it rests on a failure to grasp the in dependence of morality and other dimensions of value. Any theory about what makes a moral conviction true or what are good reasons for accepting it must be itself a moral theory and therefore must include a moral premise or presupposition. Philosophers have long demanded a moral theory that is not a moral theory. But if we want a genuine moral ontology or epistemology, we must construct it from within morality. Do you want something more? I hope to show you that you do not even know what more you could want. I hope you will come to find these initial answers not disappointing but illuminating. The second, more encouraging, explanation for your dissatisfaction is that my answers are too abstract and compressed: they point to but do not provide the further moral theory we need. The suggestion that a scientific proposition is true if it matches reality is actually as circular and opaque as my two answers. It seems more helpful because we offer it against the background of a huge and impressive science that gives the idea of matching reality substantial content: we think we know how to decide whether a piece of chemistry does that trick. We need the same structure and complexity for a moral ontology or a moral epistemology: we need much more than the bare claim that morality is made true by adequate argument. We need a further theory about the structure of adequate arguments. We need not just the idea of moral responsibility but some account of what that is.”
- 24.
- 25.
- 26.
See (Hart 1994b, 301–302): “The legal theory conceived this way as if it is at the same time descriptive and general, constitutes an enterprise radically different from Dworkin’s concept of juridical theory (or ‘General Theory of Law’, how he often designs it), conceived, partly, as an evaluation and justification ’s theory and as ‘directed to a concrete juridical culture’, which is usually the theorist’s own culture and, in Dworkin’s case, Anglo-American’s law. The central task of juridical theory this way conceived is designed by Dworkin as ‘interpretative’ and it is, partly, evaluative, since it consists in the identification of principles that simultaneously ‘adjust’ better to the law established and to the juridical practices of a juridical system, or that show themselves in coherence whit them and also give the best moral justification to the same, showing, this way, the law ‘in its best enlightment’. Footnotes were suppressed, highlighted by me. See the passage already quoted in this chapter” (Dworkin 1986, 47–48).
- 27.
See (Dworkin 1986, 47–48): “Everyone develops a complex ‘interpretive’ attitude toward the rules of courtesy, an attitude that has two components. The first is the assumption that the practice of courtesy does not simply exist but has value, that it serves some interest or purpose or enforces some principle—in short, that it has some point that can be stated independently of just describing the rules that make up the practice. The second is the further assumption that the requirements of courtesy—the behavior it calls for or judgments it warrants—are not necessarily or exclusively what they have always been taken to be but are instead sensitive to its point, so that the strict rules must be understood or applied or extended or modified or qualified or limited by that point. Once this interpretive attitude takes hold, the institution of courtesy ceases to be mechanical; it is no longer unstudied deference to a runic order. People now try to impose meaning on the institution—to see it in its best light—and then to restructure it in the light of that meaning”.
- 28.
In a very similar sence, at least in this aspect, are the thoughts of (Ewald 1986) in his reconstruction archeological-genealogical of law’s rationality of civil responsability law in french law and the formation of social law.
- 29.
Here Postema is summarizing Dworkin (1986, 65–67).
- 30.
Let’s compare it with the meaning by which this rule is recognized. (Wittgenstein 2009, § 197): “‘It’s as if we could grasp the whole use of a word in a flash.’— And that is just what we say we do. That is to say: we sometimes describe what we do in these words. But there is nothing astonishing, nothing queer, about what happens. It becomes queer when we are led to think that the future development must in some way already be present in the act of grasping the use and yet isn’t present.—For we say that there isn’t any doubt that we understand the word, and on the other hand its meaning lies in its use. There is no doubt that I now want to play chess, but chess is the game it is in virtue of all its rules (and so on). Don’t I know, then, which game I want to play until I have played it? or are all the rules contained in my act of intending? Is it experience that tells me that this sort of game is the usual consequence of such an act of intending? so is it impossible for me to be certain what I am intending to do? And if that is nonsense—what kind of super-strong connexion exists between the act of intending and the thing intended?——Where is the connexion effected between the sense of the expression ‘Let’s play a game of chess’ and all the rules of the game?—Well, in the list of rules of the game, in the teaching of it, in the day-to-day practice of playing.”. Ver também, da mesma obra, § 138: “But can’t the meaning of a word that I understand fit the sense of a sentence that I understand? Or the meaning of one word fit the meaning of another?—Of course, if the meaning is the use we make of the word, it makes no sense to speak of such ‘fitting.’ But we understand the meaning of a word when we hear or say it; we grasp it in a flash, and what we grasp in this way is surely something different from the ‘use’ which is extended in time!”
- 31.
Dworkin retakes this point in (Dworkin 2011, 123–156).
- 32.
For Dworkin understands “Works of art present themselves to us as having, or at least as claiming, value of the particular kind we call aesthetic: that mode of presentation is part of the very idea of an artistic tradition” (Dworkin 1986, 59–60). The way of seeing the debate among critics explains why some periods of literary activity are more associated than others with the artistic intention: its intellectual culture entails art’s value more firmly to the process of artistic creation. Cavell observes that “[…] in modern art, the problem of author’s intention […] has taken a more visible role, in our acceptance of their work, than in previous periods […]”and that “[…] the poetry practice is transformed in the XIX and XX century in such a way that the questioning the intention […] are imposed to the reader by the poem.” (Cavell 1969, 228–229). Therefore, our dominant style of interpretation has settled down in the author’s intention, and the discussions, inside that style, about what it is, more precisely, the artistic intention reveal doubts and divergences more refined about the nature of the creative genius, about the conscientious and unconscientious and about what is instinctive in its composition and expression. In the artistic interpretation, the interpret must “[…] firstly remember a crucial observation of Gadamer, that the interpretation must put in practice an intention.” (Dworkin 1986, 56).
- 33.
This subject has been exemplarly brought out in (Dworkin 2007).
- 34.
Dworkin plunges into this quention in a long footnote (number 14) enlightening how he reaches to such conclusions. “Habermas observes that social science differs from natural science for just that reason. He argues that even when we discard the Newtonian view of natural science as the explanation of the theory-neutral phenomena, in favor of the modern view that a scientist’s theory will determine what he takes the data to be, an important difference nevertheless remains between natural and social science. Social scientists find their data already pre interpreted. They must understand behavior the way it is already understood by the people whose behavior it is; a social scientist must be at least a ‘virtual’ participant in the practices he means to describe, lie must, that is, stand ready to judge an well as report the claims his subjects make, because unless he can judge them he cannot understand them, (See Habermas 1984, 102–11). I argue, in the text, that a social scientist attempting to understand an argumentative social practice like the practice of courtesy (or, as I shall claim, law) must therefore participate in the spirit of its ordinary participants, even when his participation is only ‘virtual’. Since they do not mean to be interpreting each other in the conversational way when they offer their views of what courtesy really requires, neither can he when he offers his views. His interpretation of courtesy must contest theirs and must therefore be constructive interpretation rather than conversational interpretation.” (Dworkin 1986, 422). Dworkin atributes this same orientation in the direction of a constructive interpretation of history per se, in opposition to the conversional interpretation also to Habermas. Against Dilthey’s historical Archimedianism, “Habermas makes makes the crucial observation (which points in the direction of constructive rather than conversational interpretation) that interpretation supposes that the author could learn from the interpreter” (Dworkin 1986, 420).
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Macedo, R.P. (2016). On How Law Is Not Like Chess – Dworkin and the Theory of Conceptual Types. In: Bustamante, T., Gonçalves Fernandes, B. (eds) Democratizing Constitutional Law. Law and Philosophy Library, vol 113. Springer, Cham. https://doi.org/10.1007/978-3-319-28371-5_14
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