Interpretivism and the Pragmatics of Legal Disagreement

Interpretivism and the Pragmatics of Legal Disagreement By David Plunkett Assistant Professor of Philosophy, Dartmouth College / Postdoctoral Scholar in Law and Philosophy, UCLA david.plunkett@dartmouth.edu and Timothy Sundell Assistant Professor of Philosophy, University of Kentucky timothy.sundell@uky.edu [Draft of 2/28/12. Please do not cite or circulate without permission.] Introduction. In work ranging from Law s Empire to Justice For Hedgehogs, Ronald Dworkin criticizes the thesis that the concept LAW consists in a set of extension-determining criteria. Dworkin argues that such a view (which he calls a criterial view of the concept LAW 1 ) is unable to explain the conceptual coherence of a certain type of purportedly prevalent disagreement within legal practice: namely, disagreements where seemingly there is such significant divergence in what speakers take to fall under the concept LAW that the criteria for something s being a law are themselves in dispute. These disagreements are what he calls theoretical disagreements in Law s Empire. Dworkin defines theoretical disagreements as disagreements about the grounds of law, about which other kinds of propositions, when true, make a particular proposition of law true. 2 (LE 5) While we ultimately dispute the details of this characterization, we follow Dworkin in using theoretical disagreement to designate the class of exchanges he considers. In order to explain the class of theoretical disagreements, Dworkin argues that the term law should be understood to express what he calls an interpretative concept 3 which he understands as a concept whose correct application depends not on a set of extension-determining criteria, but rather on the normative facts that best justify the total set of practices in which that concept is used. This thesis about the nature of the concept LAW is at the core of Dworkin s interpretivism in the philosophy of law. Nicos Stavropoulos glosses the interpretivist view in the philosophy of law as follows: interpretivism about the nature of law is the view that legal rights and duties are determined by the scheme of principle that provides the best justification of certain political practices of a community: a scheme identifiable through an interpretation of the practices that is sensitive both to the facts of the practices and to the values or principles that the practices serve. 4 1 Justice, 158. Concepts in smallcaps. Convention for this: [cite Margolis and Laurence book on concepts.] 2 5. 3 158 Justice. 4 Opening lines of SEP. 1

Thus understood, interpretivism is a position that, in the first instance, is not about the concepts involved in legal practice (including the concept LAW), but rather about the nature of law itself. However, as Dworkin has emphasized in recent work, most notably in Justice for Hedgehogs, the interpretivist view of the concept LAW i.e., the view that LAW is an interpretative concept is a crucial component in Dworkin s understanding of what interpretivism as a whole amounts to in the philosophy of law and, moreover, why he thinks that one should be motivated to accept the overall interpretivist package. In this paper, we argue that Dworkin s main motivation for introducing the idea of interpretative concepts namely, to explain the conceptual coherence of theoretical disagreement rests on a fundamental misunderstanding about the nature of disagreement. Dworkin s main argument for introducing the idea of interpretative concepts and, moreover, his form of argument for showing that specific concepts are interpretative rests on a crucial and largely unargued for premise about disagreement. This premise is that the best way to explain why an exchange between two speakers expresses a genuine disagreement is, in almost all circumstances, to suppose that those speakers mean the same things by the words they use in those exchanges and hence that they share the same set of concepts in which that disagreement is couched. Indeed, some of what Dworkin writes suggests that he thinks that the positing of shared concepts is not merely the best explanation of why an exchange constitutes a genuine disagreement but, indeed, that it is the only possible explanation. 5 This, we think, is a mistake, in both its weaker and stronger formulations. Disagreement is not, we argue, a unified phenomenon. Varieties of disagreement occur along a range of communicative dimensions, both semantic and pragmatic. Some disagreements are what one might think of as canonical: they are disagreements over the truth (or correctness) of literally expressed content. 6 In canonical disagreements, there is a single proposition (or proposition-like entity) which is part of the literally expressed content asserted by one speaker and denied by the other. In these un-exotic exchanges, the fact that speakers mean the same things by the words they use is the crucial component of an explanation of how the speakers share a coherent subject matter under dispute and how, therefore, their disagreement could be genuine. Importantly, however, not all genuine disagreements are canonical. Speakers can disagree in ways that are genuine in any sense that matters, but which are non-canonical simply in virtue of the fact that the relevant information happens to be communicated pragmatically and not semantically. In this paper, we focus on a specific type of non-canonical disagreement that we think is particularly important for the philosophy of law: disagreements over the appropriate usage of linguistic items, or metalinguistic disagreements. 7 Rather than arguing for the truth or falsity of a literally expressed proposition, speakers engaged in (the relevant sort of) metalinguistic disagreement advocate for their preferred concept in a negotiation over the most appropriate usage of the term given the circumstances. Such negotiations are largely tacit and center on information that is conveyed through pragmatic rather than semantic mechanisms. In the context of this paper, one of the most important features of such disagreements is that it is not the case that the speakers involved in a 5 For instance, We must ask: When do people share a concept so that their agreements and disagreements are genuine? (Justice, 6) 6 Why or correctness rather than simply truth? Why content rather than the more specific proposition? We intend for our notion of canonical disagreement to leave room for expressivist accounts as accounts in terms canonical disagreement. Dworkin s arguments are parallel in important ways to some of the standard arguments for expressivist accounts of normative concepts, and while we do not press the point here, we take the arguments we present here to apply in that realm as well. We pursue this line in other work, and having noted the connection, set aside the more general terminology and speak loosely in terms of propositions and their truth for the remainder of this paper. 7 In using this terminology, we follow, among others, Barker (2002), Ludlow (XXXX), and Sundell (2010). There are important distinctions to observe within the category of metalinguistic disagreements. We discuss them in Section 2. 2

metalinguistic disagreement express the same concepts by the words they utter in a disagreement. Indeed, by definition they do not. Metalinguistic disagreements of this sort are, we argue, common. Moreover, they have all of the features that philosophers have looked for in disputes that express genuine disagreement : they license ordinary linguistic denial; they "feel substantive"; and indeed they can carry great practical significance. Hence, Dworkin s disagreement-based argument for the existence of interpretative concepts as well as his apparent methodology for establishing that such-and-such concept is an interpretative concept ignores a whole class of important disagreements. The import of metalinguistic disagreements for the philosophy of law is not, however, simply that it undermines one of Dworkin s main lines of argument in favor of interpretivism. Beyond its role in that negative argument, metalinguistic disagreements provide proponents of the view that LAW is a criterial concept with an important and under-appreciated theoretical option in their positive accounts of the exchanges that motivate Dworkin s interpretivism. In short, this option is to claim that some disputes in which speakers both use the term law are best understood as (at least partially) metalinguistic disagreements. In this paper, we do not argue that this is in fact the case for any particular exchange in legal practice or theory. Nor do we argue for which particular criterial account of LAW is the best one. Our goal is more limited. We aim to expand the criterialist toolkit in analyzing the sorts of exchanges that motivate Dworkin s thesis that LAW is an interpretive concept. If we are right, then the proposal that certain exchanges in legal practice and theorizing are metalinguistic ones is one plausible strategy that can compliment existing strategies criterialists draw on in explaining so-called theoretical disagreements. The tool we offer provides criterialists with the ability to preserve (if they want to) two key intuitions about the exchanges that motivate Dworkin s interpretivism a) that these exchanges are genuine disagreements in which the parties involved are not deeply conceptually confused about their own concepts and b) that these disagreements might be conceptually coherent even if both speakers were fully aware of all the social facts. 1. Dworkin s Argument from Disagreement Dworkin advances a number of arguments for his thesis that LAW is an interpretative concept. In what follows we focus on one of the main arguments that Dworkin has advanced on this front. We call it The Argument from Disagreement. As we understand it, the Argument from Disagreement derives from a more general view about when, in general, we should take a concept to be an interpretative one. Thus, we begin with this general argument and go on to explain how Dworkin applies it to the case of LAW in particular. In order to appreciate Dworkin s view about when one should hold that a concept is an interpretative one, one needs to understand the problem Dworkin aims to solve by introducing the thesis that some concepts are interpretative. The problem involves explaining the conceptual coherence of a certain type of disagreement. In many cases, when two speakers have a discussion in which they both use a word such as democracy, law, or justice, it will become clear through the course of the discussion that the two speakers have different understandings of when to apply those words. To put it one way, different speakers will have different views often widely divergent views about what falls in the extension of a given political or moral term. When speakers stick by their views about how to apply the word democracy, even with increased awareness of the empirical facts about how things are, including the facts of how others are applying these words, it becomes tempting to think that these different speakers mean different things by the word democracy. To put it another way, insofar as one thinks of concepts as the meanings that words express, there is pressure based on their systematically differing dispositions to apply the words 3

to think that speakers engaged in this kind of persistent dispute express different concepts by their words. But, this, Dworkin claims, makes it difficult or even impossible to explain how speakers with different views about what is in the extension of, say, the word democracy can engage in genuine disagreements with each other. He writes: "if you and I mean something entirely different by democracy, then our discussion about whether [for example] democracy requires that citizens have an equal stake is pointless: we are simply talking past one another. 8 (6). The problem that Dworkin thinks interpretative concepts solve is how to avoid this sort of conclusion about talking past in those places where, intuitively, we think there are genuine disagreements involved. More specifically, Dworkin wants to figure out a way to avoid the conclusion that speakers mean different things by the word democracy despite them a) having very different beliefs about what must be the case in order for something to be in the extension of that term and even b) having very different dispositions about when to apply the term democracy (dispositions that they might be unaware of and/or mistaken about). He thinks that avoiding this conclusion is crucial to vindicating our intuitive judgment that the relevant cases of political and moral exchange count as genuine disagreements, and thus vital to preserving our sense of the substantiveness of moral and political debate. How are interpretive concepts meant to help on this front? Consider, first, how things look if one adopts what Dworkin sometimes refers to as a criterial view of a given moral and political concept e.g. DEMOCRACY. On a criterial view of DEMOCRACY, the concept consists in a set of extension-determining criteria. To put it somewhat more specifically, we might say that, on a criterial view, a given concept consists in a function from possible worlds to extensions. This view of concepts is widespread in contemporary philosophy and helps form the heart of our default theories of many prosaic concepts from everyday life for instance, of the concept CHAIR or DOG. On such a view, what it is for two speakers to share the same concept is for them to have a concept that consists in the same function from possible worlds to extensions. This in turn would be revealed by (or perhaps simply consist in) those speakers having the same dispositions to apply the relevant term given full information about a given possible world. 9 In some cases, this sort of disposition might manifest itself in speaker s own explicit and conscious views about when to apply the term. This, we take it, is part of what Dworkin is getting at when he writes as follows: We must ask: When do people share a concept so that their agreements and disagreements are genuine? We share some concepts because we agree, except in cases we all regard as borderline, about what criteria to use in identifying examples. We mainly agree about how many books there are on a table, for example, because we use the same tests in answering that question. (6) However, against Dworkin, we think that proponents of criterial concepts should be reluctant to agree that a speaker s concept is tied to her explicit beliefs about when to apply the concept (even in idealized conditions), as opposed to their her dispositions to apply that concept in those conditions. This is because speakers might, and indeed often do, have bad theories about their own behavior, and a proponent of the idea that concepts consist in a set of criteria might want to link those criteria to an agent s behavior but not her beliefs (or vice versa). Thus, we think that some of the ways in 8 That citizens have an equal stake is Dworkin s own view from Justice for Hedgehogs. The details of that specific debate are not relevant for our discussion here. 9 This type of view can easily be extended to two-dimensional frameworks, but we set such nuances aside. 4

which Dworkin characterizes what criterial concepts must be, as in the description above, are potentially misleading. We can avoid this issue by thinking of criterial concepts in the broader way we started with namely, simply as concepts that are defined by a set of criteria for falling under that concept, regardless of whether or not the users of that concept have good theories, or indeed theories of any sort, of what those criteria are. According to Dworkin, one of the important features of criterial concepts is that we sometimes realize that our disagreements are illusory (6) or pointless (6) when we realize that we have different criteria for applying the same term. Continuing his discussion about the case of exchanges about books, he writes that, although we often share the same criteria for counting something as a book, we don t always agree because our criteria are sometimes slightly different: we might disagree because you count a large pamphlet as a book and I don t. In that special borderline case our disagreement is illusory: we don t really disagree. (6) According to Dworkin, one of the striking features of important political and moral terms (e.g. democracy, law, and justice ) is that, in contrast to borderline disputes about books, we are reluctant to admit that a disagreement involving such a term is either pointless or illusory, even when we recognize that speakers applications of those terms seem to be guided by fundamentally different criteria. As he writes: justice and the other political concepts are different, however. We think that our disagreements about whether progressive taxation is just are genuine even though we disagree, in some cases very sharply, about the right criteria for deciding whether an institution is just. (6). This realization about how we view cases involving terms like justice, democracy, and law, claims Dworkin, means that we need some way to hold that, despite significant divergence among intuitively disagreeing speakers about the criteria guiding the application of those terms, the terms nonetheless express a concept that the speakers share. The key to this, Dworkin argues, is to realize that not all of our concepts are criterial and that, instead, some of them are interpretive. Based on his observation about our treatment of persistent argument about progressive taxation and justice, he puts the point as follows: We must therefore recognize that we share some of our concepts, including the political concepts, in a different way: they function for us as interpretive concepts. We share them because we share social practices and experiences in which these concepts figure. We take the concepts to describe values, but we disagree, sometimes to a marked degree, about what these values are and how they should be expressed. We disagree because we interpret the practices we share rather differently: we hold somewhat different theories about which values best justify what we accept as central or paradigm features of that practice. That structure makes our conceptual disagreements about liberty, equality, and the rest genuine. It also makes them value disagreements rather than disagreements of fact or disagreements about dictionary or standard meanings. That means that a defense of some particular conception of a political value like equality or liberty must draw on values beyond itself: it would be flaccidly circular to appeal to liberty to defend a conception of liberty. (6) In sum, by thinking of a given concept as an interpretative one one whose correct application depends not on any fixed criteria, but rather on the normative facts that best justify the total set of practices in which that concept is used Dworkin thinks that we can preserve our intuition that certain exchanges constitute substantive, genuine disagreements. What sorts of evidence does Dworkin think one must cite in order to establish that a given 5

concept is interpretive and not criterial? The answer is not entirely clear. However, Dworkin s discussion of paradigmatic instances of criterial concepts (e.g., BOOK) as opposed to interpretivist ones (e.g., DEMOCRACY) helps underscore what appear to be two of the most important lines of evidence for him. These are as follows: 1) in considering exchanges that involve the use the word (e.g. democracy ) we think that there is a genuine disagreement even though we recognize that speakers application of the word seem to be guided by fundamentally different criteria, 2) the exchanges seem to focus on some sort of evaluative and/or normative matter, and 3) it makes sense to posit a theory (such as Dworkin s) according to which speakers are conventionally thinking an evaluative and/or normative thought when they use the concept conventionally expressed by the word in question. In work ranging from Law s Empire to Justice for Hedgehogs, Dworkin argues that these conditions are met in the case of exchanges in legal practice and theorizing involving the word law wherein speakers are concerned (at least in part) with what the law is in a given jurisdiction at a given time. 10 Thus, Dworkin argues, we have good grounds for holding that LAW is an interpretative concept. This, in sum, is the Argument From Disagreement in favor of the conclusion that LAW is an interpretative concept. 2. Metalinguistic Disagreements and Dworkin s Argument From Disagreement What should we make of Dworkin s Argument From Disagreement? In this section, we argue that it rests on a mistaken premise. The mistaken premise is that the best way to explain genuine disagreement between two speakers is, in almost all circumstances, to suppose that those speakers mean the same things by the words they use in those exchanges and hence that they share the set of concepts in which that disagreement is literally couched. This view makes sense if one thinks that all or nearly all genuine disagreements are canonical disagreements, that is, disagreements over the truth of literally expressed content. But we argue that such a generalization is false. In particular, we highlight a specific type of non-canonical disagreement metalinguistic disagreement in which the information at issue is not conveyed via literal semantic content, and in which the speakers do not express the same concepts by their words. The possibility of this type of disagreement has direct implications for Dworkin s argument, as well as for the broader discussion of the nature of agreement and disagreement in Justice For Hedgehogs. In philosophical discussions of disagreement, a distinction is usually drawn between two very different types of disputes, broadly construed. (We ll use dispute throughout to mean linguistic exchanges that purport to express a real disagreement between the speakers, whether in fact they do.) On the one hand, there are those disputes that evince genuine disagreement between the speakers, and on the other, there are those disputes that constitute what are often termed mere talkings past. 11 In the first category, we find uncontroversial cases of genuine disagreement, such as that in dialogue (1): (1) (a) The cat is on the mat. (b) No, the cat is not on the mat. In the second category, we find cases where, owing to some linguistic misunderstanding (hence talking past ), the speakers fail to express a genuine disagreement. There is a range of linguistic misunderstandings that can underlie this type of case, including 10 This is what Mark Greenberg calls the legal content of a given legal system. See MG, HFML 1 and HFML 2 from Hershovitz collection Exploring Law s Empire 11 [standard citations] 6

ambiguity, differences among mutually comprehensible dialects or idiolects, or even variation in the resolution of context-sensitive linguistic features. The exchanges in (2)-(4) should serve to give an idea of the relevant phenomenon. (2) (a) Nell is at the bank [financial]. (b) No, Nell is not at the bank [river]. (3) (a) Burgers come with chips [crisps]. (b) No, burgers do not come chips [french fries]. (4) (a) Ivan is tall [for a philosopher]. (b) No, Ivan is not tall [for a basketball player]. In each of (2)-(4), speakers fail, one way or another, to mean the same things by their words (at least relative to their context). 12 Because of that fact, they assert and deny propositions that in fact are entirely consistent. The seeming-disagreements in (2)-(4) are thus not disagreements at all; or, if you prefer, they are disagreements, but not genuine disagreements. The dispute in (1) reflects a disagreement that not only is genuine, but is also, in our sense, canonical. That is, the literal semantic content of the speaker of (1a) s assertion is logically inconsistent with the literal semantic content of the speaker of (1b) s assertion. The disputes in (2)-(4) reflect disagreements which, if they are disagreements at all, fail to be genuine. But not only do they fail to qualify as genuine, they also fail to qualify as canonical. That is, the literal content expressed by, for example, the speaker of (2a) is logically consistent with the literal content expressed by the speaker of (2b). Likewise for (3) and (4). In considering the contrast between exchanges like (1) on the one hand, and exchanges like (2)-(4) on the other, it is easy to think that this overlap between the categories of genuineness and canonicalness is no coincidence. One might naturally come to think that the dispute in (1) expresses a genuine disagreement precisely in virtue of being canonical, and that the disputes (2)-(4) fail to express genuine disagreement precisely in virtue of being non-canonical. One might therefore come to think that, quite generally, if an exchange expresses a genuine disagreement then it must be the case that the speakers literally express logically inconsistent propositions. (In other words and in a slightly technical sense of say in a genuine disagreement, at least one speaker must say something false.) That principle cannot be true however. The reason is that, in virtue of its focus on literal semantic content the principle artificially ties the question of whether a dispute is genuine whether there is a stable subject matter to the question of the linguistic mechanism via which competing claims about that subject matter are transmitted. But, intuitively, questions about whether there is a stable subject of disagreement have nothing to do with the linguistic question of whether competing claims 12 A quick but crucial clarificatory point: do the speakers in (2), for example, mean different things by their words? Or do they use different words homophonous, but distinct in virtue of differences in meaning? We submit that this distinction is terminological. (And with a nod to our broader thesis that it is not just terminological, but, at least in this context, merely terminological.) Disputes that we analyze below as metalinguistic in which speakers negotiate how a word shall be used, or which concept it shall be used to express can with no important theoretical changes, be redescribed as disputes in which speakers negotiate which of two competing, homophonous words shall be used. In fact, we think that in more general discussions of concepts and word meaning, the latter form of description (which of the competing homophonous words should we choose?) is more apt. However, the former form of description (how should this very word be used in the present circumstances?) has certain expository advantages, and we stick to that way of talking for the duration of the paper. 7

about that subject happen to be communicated semantically or pragmatically. This intuition is precisely correct, and indeed there are many perfectly clear instances of disputes that express genuine disagreement, but which are not canonical in which the speakers do not literally express inconsistent propositions. There is a wide range of quite unexotic disagreements that demonstrate this point, but to save time, we consider just one before moving on to the cases most relevant to Dworkin s argument. So consider the exchange in (5): (5) (a) There are 49 states in the United States. (b) No, there are 50 states in the United States. There is a widely held, if not entirely uncontroversial, view among linguists and philosophers of language according to which number words of the kind that appear in (5) literally express only a lower bound reading. On such a view, an utterance of the expression in (5a) literally expresses the proposition that there are at least 49 states in the United States, while an utterance of the expression of (5b) literally expresses that the proposition there are at least 50 states in the United States. But of course those two propositions are consistent. Indeed, they are both true. That there are exactly 49 states is communicated by the speaker of (5a), but it is part of the pragmatic upshot of the utterance in context, not the semantic content of the speaker s assertion. Nevertheless, we submit that no plausible account of genuineness could exclude disagreements like that expressed in (5). The speakers of (5a) and (5b) take themselves to be engaged in a substantive dispute; all the usual linguistic markers of disagreement (such as the felicity of phrases like nope, nuh uh, and the like) are present; and indeed the question of how many states comprise the United States is one of great practical significance, if little controversy. Indeed, the question of whether the dispute in (5a) is substantive seems entirely orthogonal to the question of the linguistic mechanism by which the relevant information is communicated. As we ve emphasized, this is hardly surprising: what matters to whether a dispute is substantive is its topic is it something addressed by both speakers? is it worth arguing about? is it plausibly resolvable? etc. and not the linguistic means by which the competing claims are advanced. We ve observed that the strong at least one falsehood generalization drawn from the distinction between disputes like that in (1) and those in (2)-(4) is false. Disagreements over information communicated via implicature or other pragmatic mechanisms, such as that in (5), provide clear and unexotic counterexamples. However, they do not yet speak directly to the types of cases Dworkin addresses. After all, Dworkin argues that if we suppose criterialism to be true, we will find ourselves committed to the claim that parties to theoretical disagreements express different concepts with their terms. In the 49 states dispute, the speakers do assert mutually consistent propositions, but not because of any variation in word meaning or concept choice. By contrast, in the cases Dworkin considers, the criterialist must conclude not just that the speakers each express true propositions, but that they do so because they employ distinct concepts of LAW. Even if we allow based on examples like (5) that some genuine disagreements are non-canonical, we might remain skeptical that a disagreement could be both genuine and non-canonical in virtue of a difference in word meaning or concept choice. We think such skepticism is unwarranted, however. Having opened the door to non-canonical, genuine disagreements in general, we see no reason not to allow for this particular variety of non-canonical genuine disagreement. The point is easier to see in the case of context sensitive terminology, so we begin there and then move to cases more like the disagreements Dworkin addresses. Consider, in particular, linguistic expressions that are context sensitive in virtue of being gradable. This includes expressions like tall, big, cold, etc., that denote a specific property only once some parameter a 8

threshold for height, size, or temperature, say has been settled by the conversational context or by the parties to the discourse in which the expression is used. If we know how that parameter is set if, for example, we can hold the contextual threshold for coldness constant then expressions involving gradable adjectives like cold can provide us with useful information about the temperature. There is no reason at all, however, that things cannot work in precisely the reverse direction. If we know what the temperature is if we can hold the relevant heat-or-lack-there-of facts constant then expressions involving gradable adjectives like cold can provide us with useful information about the context. This latter kind of usage is described in Barker (2002), who calls it a sharpening or metalinguistic usage of a term. 13 To imagine the type of usage we have in mind, suppose that Oscar has just arrived at the research station in Antarctica. Shivering from his walk to the shelter, he glances at the outdoor thermometer and asks his new colleague Jill, Is this cold? Jill regretfully replies, Nope, I m afraid this isn t cold. Oscar and Jill s exchange is not one in which they attempt to get clearer on what the temperature is. They already know what the temperature is. Rather, Jill helps Oscar increase his knowledge about certain features of their conversational context. In particular, she informs him that the local threshold for coldness is lower on the temperature scale than the mutually known current temperature. Why would Oscar care about merely linguistic facts like this? Because how we use words matters. Oscar wants to be able to communicate smoothly with his new colleagues for one thing. But in addition to that, learning how they use the word cold reveals useful information about the range of temperatures he can expect to be typical in his new environment. Within this category of metalinguistic usages, there is a further distinction to be drawn. 14 In some cases of metalinguistic usage, it is quite natural to think that there are antecedently settled facts about what the linguistically relevant features of the conversational context are like, facts which are at least partially independent of the intentions or at least the very local intentions of the parties to a conversation. Oscar and Jill s exchange may be like this. In such cases, it is natural to think of the speakers as exchanging information that is in some (perhaps quite loose) sense, objective information about what the context is actually like. 15 If a disagreement should arise over that information, then the disagreement is a factual one about which of two or more competing characterizations of the shared conversational context is most accurate. However, not all cases of metalinguistic usage fit this profile. Suppose that Oscar and Jill are not colleagues in an Antarctica research station, but rather officemates in Chicago. Oscar is, to use the colloquial phrase, a freezy cat he often feels chilly. Jill is not. While they look together at their shared, known-to-be-accurate thermostat, Oscar utters (6a) and Jill utters (6b). (6) (a) It s cold in here. (b) No, it s not cold in here. In this case, it is much less natural to think that there is some antecedently settled, objective fact of the matter about the contextually salient threshold for coldness. Rather than advancing competing factual claims about some independently determined threshold, Oscar and Jill here negotiate over 13 Barker (2002) does not extend his discussion to cases of disagreement over information communicated metalinguistically. His cases are expanded to include disagreements in Sundell (2010). 14 While Barker does not make reference to the distinction we draw below, it is observed in both Egan (2010) and Sundell (2010), though the discussions there both avoid making commitments with respect to it. 15 This type of metalinguistic usage corresponds roughly to the usage of metalinguistic or metasemantic in Stalnaker (2003). 9

what that threshold shall be. Why would they ever consider it worth their time to engage in such a disagreement, when they already agree what the temperature is? Why engage in a dispute over how to use a word? The answer is obvious. It is worth engaging in such a dispute because it often matters a great deal how we use our words. For Oscar and Jill, as for many of us, an agreement amongst all parties who share an indoor space that the space can accurately be described as cold leads swiftly to action. In particular to thermostat-turning-up action. Thresholds matter. Why should Jill have to turn up the heat if the office cannot even be described as cold? We think that metalinguistic usages of this latter type usages where speakers do not simply exchange factual information about language, but rather negotiate its appropriate use are common. (At least as common as arguments about climate control!) Indeed we think such usages extend well beyond climate control, to disagreements about what should count as tall for our basketball team, or spicy for our curry, or rich for our tax base. In any such case, speakers each assert true propositions, but they express those true propositions by virtue of the fact that they set the relevant contextual parameters in different ways. Why are such exchanges perceived as disputes, when the speakers fail to assert inconsistent propositions? Because in addition to asserting those propositions in fact via their assertion of those propositions they also pragmatically advocate for the parameter settings by which those propositions are asserted. The claim that one parameter setting is preferable to some incompatible alternative parameter setting is very much the kind of thing over which two speakers can disagree. And given the right context for example, a context where we must coordinate our thermostat adjustings, or our basketball player picks, or our dinner order, or our progressive taxation brackets such disagreements can be very much worth having. And to emphasize our earlier point, the question of whether the disagreement is worth having is entirely independent of whether the competing claims are advanced via semantic or pragmatic mechanisms. In the cases of metalinguistic negotiation we have considered so far, the negotiations have concerned how to fix particular parameter settings for bits of context-sensitive terminology. But metalinguistic negotiation is not confined to gradable adjectives or other context-sensitive expressions. It can concern even words that seemingly are quite fixed in their meaning. In his (2007), Peter Ludlow describes a debate he heard on sports radio. The debate concerned the greatest athletes of the 20th century, and the question of whether that list should include the race horse Secretariat. Simplifying a bit, we can imagine the following exchange as part of that debate: (7) (a) Secretariat is an athlete. (b) No, Secretariat is not an athlete. Unlike the cases of metalinguistic sharpening involving gradable adjectives, there is little reason to think that the relevant linguistic expression here athlete is semantically context sensitive. But as in those cases, there is also little reason to think that the dispute in (7) concerns straightforward factual matters about the topic at hand. After all, the facts about Secretariat s speed, strength, etc. are mutually known by the speakers of (7a) and (7b), just as the facts about the temperature were mutually known by Oscar and Jill. It thus seems much more natural to conclude as Ludlow does that the dispute in (7) in fact reflects a disagreement about which of two competing concepts of ATHLETE is more appropriate to the conversation. Each speaker literally expresses a true proposition given the concept they in fact express with their term. But beyond that, they pragmatically advocate for the concept in virtue of which they assert those propositions. 16 16 It might at this point be objected that certain forms of externalism context externalism in the Oscar and Jill case, and content externalism in the Secretariat case force an alternative analysis of all of these cases. As we argue at length in 10

Ludlow s Secretariat case is particularly vivid, but we see no reason to think that this type of metalinguistic negotiation is at all uncommon. Many of us are familiar with disputes about whether Missouri is in the midwest, or whether Pluto is a planet, or whether the federal anti-drug effort constitutes a war. In each case, most of the relevant facts the location of Missouri, the size and orbit of Pluto, the contents of the relevant anti-drug policies are mutually known among parties to the dispute. And yet it seems that the disputes are, or at least have the potential to be, genuine disagreements in any plausible sense. It may not matter very much which states we choose to include in the midwest. But it can matter a great deal whether a policy is meant to address a social ill or advance our cause in a war. As in the case of Oscar and Jill s debate about the coldness of their office, metalinguistic negotiations influence and advance more general processes of collective decision making and action. To see this point especially clearly, consider one last example. Suppose that two speakers engage in the dialogue in (8): (8) (a) Waterboarding is torture. (b) No, waterboarding is not torture. 17 Suppose further that the speaker of (8a) quite generally follows the U.N. General Assembly (1984) in defining torture as any act inflicting severe suffering, physical or mental, in order to obtain information or to punish, while the speaker of (8b) quite generally follows former U.S. Justice Department practice in defining torture as any such act inflicting pain rising to the level of death, organ failure, or the permanent impairment of a significant body function. Perhaps some form of externalism, or expressivism or even interpretivism could have it come out that despite compelling evidence to the contrary, the speakers of (8a) and (8b) mean the same thing by torture. But suppose that they do not. Even if we suppose that these speakers mean different things by torture, and thus that they each literally express true propositions, we are in no way committed to the conclusion that the exchange in (8) is confused, non-genuine, or a mere talking past. As in the Secretariat case and as in the office thermostat case, speakers do more than literally assert the propositions which are the semantic contents of the expressions they utter. They also presuppose, connote, and implicate, and they also, by virtue of their choices of parameter settings and concepts, pragmatically advocate for those very parameter settings and concepts. Does the dispute in (8) express a disagreement worth having? Of course. The matter of which interrogation techniques are aptly described as torture matters a great deal in our moral, ethical, and legal discourse and in the coordinated actions that result from those discourses. If we choose to analyze the dispute in (8) as a metalinguistic negotiation, then we will conclude that it does not concern the truth value of some agreed-upon proposition, but rather the question of which of two competing concepts is better. That of course raises a difficult question: What is there in the world that could make one concept of TORTURE better than another? We of course do not have the answer to that, but we do not need one for our argument to go through. Whatever substantive legal or meta-ethical theory one might point to claim that one of (8a) or (8b) is false or that one of (8a) or (8b) is incorrect can, with no theoretical cost, be adapted to claim that one other work, only the most implausibly strong forms of externalism could force reanalysis of all seemingly-metalinguistic disputes. (Cases of metalinguistic negotiation across mutually comprehensible dialects make the point nicely vivid.) Thus everyone is stuck with metalinguistic disagreement, externalist or not; the question is merely how far the phenomenon extends. Once it is in the picture, we find it quite unnatural to think that it does not extend to cases of the kind we consider here. In any case, externalism is not going to help Dworkin, who advocates an entirely different type of analysis of the relevant disputes. 17 The example of torture is mentioned in Chalmers (2010) and discussed in some detail in Sundell (2011). Both make points similar to the one we make here. 11

of the competing concepts of TORTURE employed in (8a) or (8b) is worse than the other. There are more ways to err than simply to express a false proposition. When we speak, we aim to succeed along a range of dimensions, and thus we are liable to fail along that same range of dimensions. Our claims are evaluable not simply by the truth of what we literally say, but also by our choices of how to carve up the world. So where now do we find ourselves viz a viz Dworkin s Argument From Disagreement? We have argued, first, that a dispute s expression of genuine disagreement is entirely consistent with both parties to that dispute expressing true propositions. (Genuine disagreements can be non-canonical disagreements.) Second, we have argued that some genuine, non-canonical disagreements are noncanonical in virtue of the parties to those disagreements employing distinct concepts. (Some genuine disagreements are metalinguistic disagreements.) The fact that in a metalinguistic disagreement the information at issue is communicated pragmatically and not semantically does not preclude the disagreement s being genuine, because the linguistic mechanism of communication is always independent of whether the disagreement is worth having. The fact that in a metalinguistic disagreement, the information at issue is about language also does not preclude the disagreement s being genuine because how we use language matters. These conclusions have two important upshots for Dworkin s argument. First, they fatally undermine his quite general assumption that if parties to a disagreement cannot be described as employing the same concepts then we cannot describe their disagreement as coherent in any sense. Without that assumption, Dworkin s Argument From Disagreement fails, both as an argument for the existence of interpretive concepts, and as an argument form, instances of which demonstrate that specific candidate concepts are indeed interpretive. Second, our conclusions about metalinguistic disagreement provide an additional option to those criterialists who think that theoretical disagreements do not provide an insurmountable obstacle to the prospects for their view. While we have neither the space nor the ambition to argue here that any particular theoretical disagreement is in fact best analyzed as metalinguistic, we are optimistic that criterialists of various stripes will find the notion useful in analyzing whatever purportedly-theoretical disagreements they do not account for in other ways. 18 To see very generally how such an analysis might go, consider an exchange of the form represented in (9): (9) (a) The law requires that ϕ. (b) No, the law requires that Ψ. Suppose that ϕ and Ψ represent incompatible understandings of the contents of the relevant laws. Suppose further that (9a) is true only if the concept of LAW expressed by the speaker is sensitive only to the meaning of the relevant text, at least when that meaning is clear. And suppose that (9b) is true 18 What other ways? Again, our goal is not to canvas or advocate any particular criterialist view, but the options include the following strategies: (1) There are extension determining criteria for concepts like LAW, but they are abstract or complex enough that the superficial appearance of widely divergent views about their application is misleading. (2) There are extension-determining criteria for concepts like LAW, but epistemic access to those criteria is more complicated than one might think. This strategy is bolstered by our observation, above, that the criterialist need not make reference to the speakers beliefs about how to apply their term, but rather simply their dispositions. (Both (1) and (2) are strategies employed by Shapiro in Legality.) Finally, one might, following Leiter, contend (3) that so-called theoretical disagreements are so rare as to limit their usefulness in theory choice and (4) that given a theory-neutral description of the relevant cases they may not in fact be conceptually coherent after all. These four strategies are just a few examples among many. We find each to have its merits, and see no reason that the metalinguistic analysis could not be drawn on by theorists employing any such analysis in a more general divide and conquer strategy. 12

only if the concept of LAW expressed by the speaker requires that the relevant text be read in such a way that it accords with some modicum of common sense and public weal. 19 Finally, suppose that the speaker of (9a) uses law quite generally in such a way that expressions containing it are true only if the relevant concept is sensitive only to the clear meaning of the relevant texts. And suppose that the speaker of (9b) uses law quite generally in such a way that common sense and public weal are relevant as well. 20 This type of dispute thus seems like an ideal candidate for expressing a theoretical disagreement. If the criterialist chooses to analyze a disagreement like this as metalinguistic, she will suppose that, just as their systematically differing usage would seem to indicate, the speakers of (9a) and (9b) do indeed mean something entirely different 21 by law and thus that they do indeed employ distinct concepts of LAW. This is precisely the view that Dworkin accuses the criterialist of being committed to. But it does not have implication he claims it does. After all, in addition to asserting the propositions that are the literal content of the expressions they utter, the speakers of (9a) and (9b) implicate, presuppose, and connote a whole range of further information. Beyond that, of course, they pragmatically advocate for the concepts they choose to express with their words. When all the relevant facts on the ground are known, as they are in plausible cases of theoretical disagreement, then in precise parallel to the thermostat case, and the Secretariat case, and the torture case it is open to the criterialist to say that the parties to the dispute disagree about how law is to be used, and thus about which concept of LAW is better suited to the circumstances. And that is a disagreement that is not only comprehensible, but which, under the right circumstances, can be very much worth having. Is it open to Dworkin to allow that metalinguistic disagreements do indeed exist, but to object that the type of analysis we have sketched here is implausible as applied to theoretical disagreements? Absolutely. Perhaps metalinguistic negotiation is quite common indeed, but that, for reasons we have failed to canvas, it is absurd as a diagnosis of legal theoretical disagreement. But this is a much more subtle claim than the one currently staked out by Dworkin and it requires a far more subtle argument than any on offer in Law s Empire or Justice for Hedgehogs. It is entirely possible that theoretical disagreements will turn out not to be good candidates for this type of analysis. But we have not yet seen an argument for that conclusion, and we remain optimistic that in fact the metalinguistic analysis will find an important niche in broader criterialist analyses of legal terms and concepts. 3. Other Theoretical Virtues and Vices Suppose we grant that the metalinguistic analysis of theoretical disagreements has some degree of plausibility. Are there general considerations by which we might then choose between criterialism-thus-augmented and Dworkin s interpretivism? Our main goal here has been to introduce the metalinguistic analysis into the criterialist s tool-kit, and thus we will not have detailed arguments to offer here. But we do think that there are quite general reasons to prefer some version of criterialism, augmented with metalinguistic analysis where necessary, to Dworkin s alternative. We mention some of those reasons here. The first reason for preferring a criterialist account of LAW is that the idea that some concepts 19 [cite TVA v. Hill and Law s Empire] 20 With these last two suppositions, we aim to render unnecessary Leiter s contention that, rather than reflecting deep seated and consistent legal-theoretic views, the positions argued in so-called theoretical disagreements are often highly opportunistic. [cite] Leiter s claim is consistent with, and in fact, helps our more general position. But at this point in the argument, we want the case of supposedly theoretical disagreement to be as close to Dworkin s ideal as possible. 21 [re-cite JFH] 13