Semantic Sting and Legal Argumentation (original) (raw)

" Is Legal Positivism Legal Literalism? "

The linguistic turn in philosophy has given rise to increased attention to how views in philosophy of language can solve problems in legal philosophy. One of the central arguments within this research area is Ronald Dworkin's Semantic Sting argument. In it Dworkin charges legal positivism with being unable to account for disagreements over the meaning of constitutional principles. Since Dworkin deployed this argument in "Law's Empire," many have argued over whether legal positivists face the dilemma Dworkin claims they do. For the most part, they have concluded that Dworkin's argument is invalid or that it is unsound. In this paper, I reconceive the core of Dworkin's Semantic Sting argument by showing that legal positivists are committed to a literalist view of language.

Semantic, Interpretive, and Conceptual Theories of Law

Suri: Journal of the Philosophical Association of the Philippines, 2021

A general jurisprudential theory explains the essential features of law. The objective of this paper is to provide a comparison of three kinds of jurisprudential theories that have dominated legal philosophy in the last seventy years. First, there are semantic theories that seek to understand the nature of law by digging out shared linguistic criteria that designate the correct use of legal terms. Second, there are interpretive theories that take the perspective of the judge in constructing the most moral interpretation the law to determine what it "really" says on a case. And third, there are conceptual theories which explicate the logical presuppositions, implications, and concepts that underlie legal phenomena and reveal more than what is made obvious by language. This paper shall also defend Legal Positivism-the view that law has social foundations-against Ronald Dworkin's objection known as the "semantic sting", which claims that positivists are unable to account for the existence of deep controversy in legal practice by virtue of allegedly treating law as a trivial linguistic enterprise. It shall argue, alternatively, that deep controversy occurs because law is an "essentially contested concept", which in turn occurs because law is a complex social institution.

One Myth of the Classical Natural Law Theory: Reflecting on the “Thin” View of Legal Positivism

Ratio Juris

Much controversy has emerged on the demarcation between legal positivism and non-legal positivism with some authors calling for a ban on the-as they see it-nonsensical labelling of legal philosophical debates. We agree with these critics; simplistic labelling cannot replace the work of sophisticated and sound argumentation. In this paper we do not use the term 'legal positivism' as a simplistic label but identify a specific position which we consider to be the most appealing and plausible view on legal positivism. This is the view advocated by Gardner in his paper 'Legal Positivism: 5 1 =2 Myths' (Gardner 2001, 199), where he carefully scrutinises the most convincing and unifying postulates of legal positivism, which he calls "the thin view". The study shows that this thin view presupposes an empirical conception of action that is untenable and implausible since it makes acts of engagement with the law unintelligible to an observer of such acts.

Legal Positivism: Still Descriptive and Morally Neutral

Oxford University Press eBooks, 2007

It has become increasingly popular to argue that legal positivism is actually a normative theory, and that it cannot be purely descriptive and morally neutral as H.L.A. Hart has suggested. This article purports to disprove this line of thought. It argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law. The article distinguishes between five possible views about the relations between normative claims and legal positivism, arguing that some of them are not at odds with Hart's thesis about the nature of jurisprudence, while the others are wrong, both as expositions of legal positivism or as critiques of it. Legal positivism does not necessarily purport to justify any aspect of its subject matter, nor is it committed to any particular moral or political evaluations.

THE CONSTRUCTION OF LEGAL POSITIVISM AND THE MYTH OF LEGAL INDETERMINACY

This paper compares the pragmatist view of law as boundaryless and endogenous with the competing view--generally known as “legal positivism”--which sees law as separate, exogenous and autonomous. Both models are reflected in the methodology of American law; yet the two are at odds. They imply a deep inconsistency in our corporate belief in what law is, giving rise to radically different approaches to legal interpretation. According to the positivist model, law, considered as an adjudicative matrix, either succeeds or fails on its own. When deciding difficult cases this means the positivist must accept the problematic possibility of “legal indeterminacy.” This revision includes a postscript on the pragmatist theory of legal interpretation.

Legal Positivism and Legal Disagreements

2009

This paper deals with the possibility of faultless disagreement in law. And it does looking for other spheres in which faultless disagreement seems possible, mainly the matters of taste and the ethical matters. Three possible accounts are explored: the realist account, the relativist account, and the expressivist account. The paper tries to show that in the case of legal disagreements there is a place for an approach able to take into account our intuitions in the sense that legal disagreements are genuine disagreements and, sometimes, these disagreements are faultless.

[2008] Making the Law Explicit: The Normativity of Legal Argumentation

2008

Legal argumentation consists in the interpretation of texts. Therefore, it has a natural connection to the philosophy of language. Central issues of this connection, however, lack a clear answer. For instance, how much freedom do judges have in applying the law? How are the literal and the purposive approaches related to one another? How can we distinguish between applying the law and making the law?