Chapter

Substantive Disagreement and Indeterminacy

Nicos Stavropoulos

in Objectivity in Law

Published in print April 1996 | ISBN: 9780198258995
Published online March 2012 | e-ISBN: 9780191681899 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198258995.003.0005
Substantive Disagreement and Indeterminacy

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If legal concepts are capable of being the object of substantive disagreement (SD), there must be a way to demarcate this sort of disagreement from conceptual disagreement (CD). This chapter examines whether allowing for SD in law entails radical indeterminacy of legal interpretation, unless conventional constraints to the content of law are presupposed. It examines the importance of the subject in connection with legal theory and discusses various misunderstandings of Ronald Dworkin's attack on the Criterial Model: his criticism of the ‘semantic sting’. The chapter argues that Dworkin's theory is compatible with the Kripke-Putnam semantics and that the two models are mutually reinforcing. It also discusses Joseph Raz's argument to the effect that Dworkin 's model presupposes the Criterial Model, since it would otherwise make for radical indeterminacy of legal interpretation. The chapter furthermore clarifies Dworkin's notion of pre-interpretive agreement, and discusses arguments attributed to Ludwig Wittgenstein that are thought to support the necessity of conventions, along with the possible importance of the fact that Dworkin avoids metaphysics.

Keywords: Ronald Dworkin; Ludwig Wittgenstein; Joseph Raz; legal concepts; substantive disagreement; indeterminacy; conceptual disagreement; legal theory; legal interpretation; Criterial Model

Chapter.  21947 words. 

Subjects: Jurisprudence and Philosophy of Law

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