One of Ronald Dworkin's most distinctive claims in legal philosophy is that law is an interpretative concept, a special kind of concept whose correct application depends neither on fixed criteria nor on an instance-identifying decision procedure but rather on the normative or evaluative facts that best justify the total set of practices in which that concept is used. The main argument that Dworkin gives for interpretivism about some concept—law, among many others—is a disagreement-based argument. We argue here that Dworkin's disagreement-based argument relies on a mistaken premise about the nature of disagreement. We propose an alternative analysis of the type of dispute—what we call “seeming variation cases”—that Dworkin uses to motivate the idea of interpretative concepts. We begin by observing that genuine disagreements can be expressed via a range of linguistic mechanisms, many of which do not require that speakers literally assert and deny one and the same proposition. We focus in particular on what we call “metalinguistic negotiations,” disputes in which speakers do not express the same concepts by their words but rather negotiate how words should be used and thereby negotiate which of a range of competing concepts should be used in that context. We claim that this view has quite general theoretical advantages over Dworkin's interpretivism about seeming variation cases and about the relevant class of legal disputes in particular. This paper thus has two interlocking goals: (1) to undermine one of Dworkin's core arguments for interpretivism, and (2) to provide the foundations for a noninterpretivist alternative account of an important class of legal disputes.

It is a commonplace that coercion forms part of the nature of law: Law is inherently coercive. But how well founded is this claim, and what would it mean for coercion to be part of the “nature” of law? This article suggests that the claim is grounded in our current conception of law. The main focus of the article, however, is upon two major lines of argument that attempt to establish a link between law and coercion: one based upon the law’s efficacy; the other upon the law’s normativity. It argues that the claim that law is necessarily coercive because it must be efficacious is mistaken—not necessarily on sociological or psychological grounds, but because it identifies law with the preconditions for its existence. On the other hand, the argument that law’s normativity is inherently linked to coercion contains an important truth—not because coercion is necessary to account for normativity, but because the scope of law’s claim to authority encompasses the right to authorize the use of coercion.

INTRODUCTION

A says to B: “Unless you x, I will y.” Or, equivalently, “I will –y if and only if you x.” Is this proposal coercive? If B performs x has he been coerced? Is this an instance of coercion? Moral and political philosophers, as well as legal theorists, have struggled with these questions at least since Aristotle but have been tackling them with renewed vigor since Robert Nozick’s seminal 1969 article.Robert Nozick, Coercion, in PHILOSOPHY, SCIENCEAND METHOD 440 (Sidney Morgenbesser et al., ed. 1969). And, happily, scholarly efforts over the past few decades have substantially advanced our understanding.The most comprehensive account, which explores coercion from both legal and philosophical perspectives, is Alan Wertheimer, COERCION (1987). Other particularly valuable contributions to a substantial literature include Joel Feinberg, HARMTO SELF 189–268 (1986); Harry G. Frankfurt, Coercion and Moral Responsibility, in ESSAYSON FREEDOMOF ACTION 63 (Ted Honderich ed. 1973); Vinit Haksar, Coercive Proposals, 4 POL. THEORY 65 (1976); Daniel Lyons, Welcome Threats and Coercive Offers, 50 PHIL. 425 (1975); Peter Westen, “Freedom” and “Coercion”—Virtue Words and Vice Words, 1985 DUKE L.J. 541; and David Zimmerman, Coercive Wage Offers, 10 PHIL. & PUB. AFFAIRS 121 (1981). Most significantly, in my view, they have made increasingly clear (despite a few remaining dissenters) that answers to these coercion questions are thoroughly moralized in the sense that the questions cannot be resolved by reference solely to nonmoral facts. But if the answers themselves are moralized, so too, of course, are the questions. That is, coercion claims arise, and stake a claim to our attention, in order to serve some sort—or sorts—of normative needs.

This article defends the importance of epistemic safety for legal evidence. Drawing on discussions of sensitivity and safety in epistemology, the article explores how similar considerations apply to legal proof. In the legal context, sensitivity concerns whether a factual finding would be made if it were false, and safety concerns how easily a factual finding could be false. The article critiques recent claims about the importance of sensitivity for the law of evidence. In particular, this critique argues that sensitivity does not have much of an effect on the value of legal evidence and that it fails to explain legal doctrine. By contrast, safety affects the quality of legal evidence, and safety better explains central features of the law of evidence, including probative value, admissibility rules, and standards of proof.

This article examines a thesis of interest to social epistemology and some articulations of First Amendment legal theory: that a free market in speech is an optimal institution for promoting true belief. Under our interpretation, the market-for-speech thesis claims that more total truth possession will be achieved if speech is regulated only by free market mechanisms; that is, both government regulation and private sector nonmarket regulation are held to have information-fostering properties that are inferior to the free market. After discussing possible counterexamples to the thesis, the article explores the actual implications of economic theory for the emergence of truth in a free market for speech. When confusions are removed about what is maximized by perfectly competitive markets, and when adequate attention is paid to market imperfections, the failure of the market-for-speech thesis becomes clear. The article closes by comparing the properties of a free market in speech with an adversarial system of discourse.

It is hard to think of a more banal statement one could make about the law than to say that it necessarily claims legal authority to govern conduct. What, after all, is a legal institution if not an entity that purports to have the legal power to create rules, confer rights, and impose obligations? Whether legal institutions necessarily claim the moral authority to exercise their legal powers is another question entirely. Some legal theorists have thought that they do—others have not been so sure. But no one has ever denied (how could they?) that the law holds itself out as having the legal authority to tell us what we may or may not do.

The international legal order is beginning to take human rights seriously, yet sound justifications for claims about human rights are conspicuously absent. Philosophers have begun to respond to this “justification deficit” by developing theories of human rights. Although a philosophical conception of human rights is needed, it would not be sufficient. The justification of human rights is a dynamic process in which a provisional philosophical conception of human rights both guides and is fleshed out by public processes of practical reasoning structured by legal institutions. Whether the “justification deficit” can be remedied depends not only upon the content of human rights norms as set out in the major conventions and the arguments philosophers can marshal to justify them but also upon the epistemic virtues of the institutions through which the norms are specified, contested, and revised over time.

In fact, law is necessarily very vague. So if vagueness is a problem for legal theory, it is a serious problem. The problem has to do with the ideal of the rule of law and with the very idea of law: if vague standards provide no guidance in some cases, how can the life of a community be ruled by law? The problem has long concerned philosophers of law; the papers at this symposium address it afresh by asking what legal theory may have to learn from (or contribute to) work on vagueness in philosophy of language and philosophy of logic. Here I will not try to state the implications of vagueness for philosophy of law; I will try to set the stage by showing that vagueness is both an important and an unavoidable feature of law.

INTRODUCTION

There is a type of organization found in certain collectivities that makes them into subjects in their own right, giving them a way of being minded that is starkly discontinuous with the mentality of their members. This claim in social ontology is strong enough to ground talk of such collectivities as entities that are psychologically autonomous and that constitute institutional persons. Yet, unlike some traditional doctrines (Runciman 1997), it does not spring from a rejection of common sense. I try to argue here that the claim is supported by the implications of a distinctive social paradox—the discursive dilemma—and is consistent with a denial that our minds are subsumed in a higher form of Geist or in any variety of collective consciousness. And having done that, I draw attention to one way in which the claim may prove to have policy-making implications.

Hate speech employs discriminatory epithets to insult and stigmatize others on the basis of their race, gender, sexual orientation, or other forms of group membership. The regulation of hate speech is deservedly controversial, in part because debates over hate speech seem to have teased apart libertarian and egalitarian strands within the liberal tradition. In the civil rights movements of the 1960s, libertarian concerns with freedom of movement and association and equal opportunity pointed in the same direction as egalitarian concerns with eradicating racial discrimination and the social and economic inequalities that this discrimination maintained. But debates over hate speech regulation seem to force one to give priority to equality or to liberty. On the one hand, egalitarian concerns may seem to require restricting freedom of expression. Hate speech is an expression of discriminatory attitudes that have a long, ugly, and sometimes violent history. As such, hate speech is deeply offensive to its victims and socially divisive. Though one might well be reluctant to restrict speech, it might seem that the correct response to hate speech, as with other forms of discrimination, is regulation. On the other hand, libertarian concerns may seem to constrain the pursuit of equality. Though one may abhor hate speech and its effects, the cure might seem at least as bad as the disease. Freedoms of expression are among our most fundamental liberties. Offensive ideas are part of the price one must pay to protect these constitutional rights.

To say that the law is indeterminate is to say that the class of legal reasons (hereafter “the Class”) is indeterminate. The Class, in turn, consists of four components:

1. Legitimate sources of law (e.g., statutes, constitutions, court decisions, social policy, morality);

2. Legitimate interpretive operations that can be performed on the sources in order to generate rules of law (e.g., proper methods of interpreting statutes or prior cases or of reasoning about moral concepts as these figure in the sources);

3. Legitimate interpretive operations that can be performed on the facts of record in order to generate facts of legal significance (e.g., proper ways of grouping and categorizing fact situations for purposes of legal analysis); and

4. Legitimate rational operations that can be performed on facts and rules of law to finally yield particular decisions (e.g., deductive reasoning).

Legal positivism is generally characterized by its commitment to two theses —one negative, the other positive.See, e.g., Jules Coleman, Negative and Positive Positivism, J. LEGAL STUD. 139 (1982), reprinted in Jules L. Coleman, MARKETS, MORALS AND THE LAW 3 (1988). The negative thesis, usually referred to as the “Separability Thesis,” denies any necessary connection between morality and legality. Legal positivists do not require that a norm possess any desirable, or lack any undesirable, moral attributes in order to count as law.

In “How Facts Make Law” and other recent work, Mark Greenberg argues that legal positivists cannot develop a viable constitutive account of law that meets what he calls the “the rational-relation requirement.” He argues that this gives us reason to reject positivism in favor of antipositivism. In this paper, I argue that Greenberg is wrong: positivists can in fact develop a viable constitutive account of law that meets the rational-relation requirement. I make this argument in two stages. First, I offer an account of the rational-relation requirement. Second, I put forward a viable positivist account of law that I argue meets this requirement. The account that I propose is a version of Scott Shapiro's Planning Theory of Law. The version of Shapiro's account that I propose combines (1) the account of concepts and conceptual analysis put forward by David Chalmers and Frank Jackson with (2) the account of the concept legal institution (and its conceptual connections to the concept legal norm) that we get from a certain reading of Shapiro's Planning Theory. In addition to providing a compelling response to Greenberg's argument in “How Facts Make Law,” I argue that the explanation for why my response to Greenberg works underscores one of the central problems facing legal antipositivism: namely, its lack of a convincing account of the nature of legal institutions.

As with many issues in contemporary jurisprudence, a host of recent debates concerning the proper methodology for legal theorists to adopt have been set into motion by H.L.A. Hart's The Concept of Law.H.L.A. HART, THE CONCEPT OF LAW (1st ed., 1961; 2nd ed. with Postscript, Penelope A. Bulloch and Joseph Raz, eds., 1994). All page references to this work are given according to the pagination in the 2nd edition. In the opening pages of the original edition of the book, Hart presents legal scholars in a self-reflective light, claming that they have a distinctive tendency to be drawn into theoretical debates concerning the subject matter of their discipline: “No vast literature is dedicated to answering the questions ‘What is chemistry?’ or ‘What is medicine?,’ as it is to the question ‘What is law?’HART, supra note 1, at 1.

Nowhere has H.L.A. Hart's influence on philosophical jurisprudence in the English-speaking world been greater than in the way its fundamental project and method are conceived by its practitioners. Disagreements abound, of course. Philosophers debate the extent to which jurisprudence can or should proceed without appeal to moral or other values. They disagree about which participant perspective—that of the judge, lawyer, citizen, or “bad man”—is primary and about what taking up the participant perspective commits the theorist to. However, virtually unchallenged is the view that jurisprudence is fundamentally interpretive or “hermeneutic”; that it takes for its subject a certain kind of social practice, constituted by the behavior and understandings of its participants; that its task is to explain this practice and its relations to other important social practices; and that it can properly be explained only by taking full account of participant understandings. It is, perhaps, some measure of the hegemony of Hart's influence that Ronald Dworkin mounts his fundamental challenge to Hart's positivism squarely from within this jurisprudential orthodoxy. Dworkin may have exceeded the limits of the method as Hart conceived it, but, as Stephen Perry has argued, “the seeds of Dworkin's strong version of inter-pretivism were sown by Hart himself.”

In Born Free and Equal: A Philosophical Inquiry into the Nature of Discrimination, Kasper Lippert-Rasmussen defends the harm-based account of the wrongness of discrimination, which explains the wrongness of discrimination with reference to the harmfulness of discriminatory acts. Against this view, we offer two objections. The conditions objection states that the harm-based account implausibly fails to recognize that harmless discrimination can be wrong. The explanation objection states that the harm-based account fails adequately to identify all of the wrong-making properties of discriminatory acts. We argue that the structure of a satisfactory view cannot be outcome-focused. A more promising family of views focuses on the deliberation of the discriminator and in particular on the reasons that motivate or fail to motivate her action.

In Causation and Responsibility, Michael Moore offers an integrated conception of the law, morality, and metaphysics, centered on the notion of causation. I contest Moore's claim that causation cannot relate absences and show how accepting absence causation would improve Moore's view. For denying absence causation drives Moore to a disjunctive account of legal and moral responsibility in order to handle cases such as negligence. It forces him into denying that beheading someone can cause them to die, since the route from beheading to death involves the absence of blood flow to the brain. And it leads him into allowing that responsibility can arise from mere correlation with a crime, given that counterfactual dependence can still hold between correlates.

This article strives to articulate some of the conventional foundations of law. The article consists of three main arguments. First, between H. L. A. Hart's conception of the rules of recognition and H. Kelsen's theory of the basic norm, Hart's view is more compelling. Second, the paper argues that the rules of recognition are social conventions but not of the familiar coordinative type, as some commentators have claimed. Finally, the article draws a distinction between deep and surface conventions, arguing that there are some deep conventions about what law is, and surface conventions that determine what counts as law in a particular community. This distinction between deep and surface conventions is employed to solve some of the puzzles about the nature of the rules of recognition.