This is the second of two closely related articlesThe first is Warren F. Schwartz, Long-Shot Class Actions: Toward a Normative Theory of Legal Uncertainty, 8 LEGAL THEORY 297 (2002). challenging the widely held belief that plaintiffs, through the settlement process, are realizing “too much” from “unmeritorious” claims. No one has offered a systematic justification for this belief. It appears, however, to be based upon the effects produced by three characteristics of the settlement process: (1) the outcome of litigation is uncertain; (2) when, as in a class action, the stakes are very high for a defendant, the defendant will be very risk-averse and will consequently be prepared to pay in settlement much more than the expected value of its liability; and (3) litigation is costly.

Two methodological claims in Hart's The Concept of Law have produced perplexity: that it is a book on “analytic jurisprudence”H.L.A Hart, THE CONCEPT OF LAW (1994). and that it may also be regarded as an essay in “descriptive sociology.”Id. Are these two ideas reconcilable? We know that mere analysis of our legal concepts cannot tell us much about their properties, that is, about the empirical aspect of law. We have learned this from philosophical criticisms of conceptual analysis; yet Hart informs us that analytic jurisprudence can be reconciled with descriptive sociology. The answer to this puzzle lies in the notion of nonambitious conceptual analysis. The theorist analyzes concepts but accepts the limitations of conceptual analysis and therefore uses empirical knowledge and substantive arguments to explain, refine, or perhaps refute initial insights provided by intuitions. This is the conclusion that this paper arrives at as an argumentative strategy to defend Hart's legal theory from the criticisms of Stavropoulos and Dworkin. The latter argues that Hart's legal theory cannot explain theoretical disagreements in law because he relies on a shared criterial semantics. Stavropoulos aims to show that Hart's semantics is committed to ambitious conceptual analysis and relies on the usage of our words as a standard of correctness. Both attacks aim to show that the semantic sting stings Hart's legal theory. This essay refines both challenges and concludes that not even in the light of the most charitable interpretation of these criticisms is Hart's legal theory stung by the semantic sting. This study defends the view that Hart's methodological claims were modest and that he was aware of the limits of conceptual analysis as a philosophical method. He was, this study claims, far ahead of his time.

The import and intentions of Ronald Dworkin's work are fairly grand. Dworkin does not propose a plain theory of law. Indeed, his theory of law is one part of a grand architectonic that also encompasses a theory of liberal equality and an important discussion of community. Though it is the last component that this essay is most interested in, it is impossible to consider one part in isolation from the others. Dworkin believes that community can serve as a go-between for authority and autonomy; or, to use a different rubric, community can explain and justify obligation. The authority must present a legal system that is true to the value of integrity. If a legal system displays integrity, the political community becomes amenable to personification. Personification of the community allows for the formation of feelings of veneration and attachment towards it. These feelings are critical to the well-being of the individual. Hence if authority abides by the demands of community, it deserves allegiance from the individual. The tension between authority and autonomy is in this manner resolved.

The objectivity of legal interpretation has often been denied from a linguistic perspective. According to some, legal interpretation cannot be objective because law consists of language, and language is naturally indeterminate. In my view, there is something odd about this argument. For its conclusion to be warranted, language should always be indeterminate, that is, all words, sentences and texts in our language should be indeterminate, and indeterminate at all times. Yet this is clearly not the case. If language were always indeterminate, we would not be able to have a conversation; if language were indeterminate at all times, you would not be able to understand me if I told you loud and clear right now to stop reading this article. But we do have conversations; and you would understand what I meant if had told you to stop reading. In fact, our language seems to be determinate enough for the purposes of most of our daily conversations. If I said “hi” to you, you would, I suppose, say “hi” back. If I told you to pick up a pen right now, you would know exactly what to do. Most of our conversations work, that is, they serve their purposes. And our language seems to be as determinate as these purposes require.