David Plunkett

Which Concepts Should We Use?: Metalinguistic Negotiations and The Methodology of Philosophy

Abstract This paper is about philosophical disputes where the literal content of what speakers communicate concerns such object-level issues as ground, supervenience, or real definition. It is tempting to think that such disputes straightforwardly express disagreements about these topics. In contrast to this, I suggest that, in many such cases, the disagreement that is expressed is actually one about which concepts should be employed. I make this case as follows. First, I look at non-philosophical, everyday disputes where a speaker employs (often without awareness of doing so) a metalinguistic usage of a term. This is where a speaker uses a term (rather than mentions it) to express a view about the meaning of that term, or, relatedly, how to correctly use that term. A metalinguistic negotiation is a metalinguistic dispute that concerns a normative issue about what a word should mean, or, similarly, about how it should be used, rather than the descriptive issue about what it does mean. I argue that the same evidence that supports thinking that certain ordinary disputes are metalinguistic negotiations also supports thinking that some (perhaps many) philosophical disputes are. I then explore some of the methodological upshots of this understanding of philosophical disputes.

DWORKIN'S INTERPRETIVISM AND THE PRAGMATICS OF LEGAL DISPUTES

One of Ronald Dworkins 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 Dworkins 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 Dworkins 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 Dworkins core arguments for interpretivism, and (2) to provide the foundations for a noninterpretivist alternative account of an important class of legal disputes.

A POSITIVIST ROUTE FOR EXPLAINING HOW FACTS MAKE 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 Shapiros Planning Theory of Law. The version of Shapiros 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 Shapiros Planning Theory. In addition to providing a compelling response to Greenbergs 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.

Non-Consequentialism Demystified

Many moral theories hold that what an agent morally ought to do is determined in part by the goodness of the outcomes of those actions currently available to her. However, some moral theories go further and claim that what an agent morally ought to do is determined solely by the goodness of the outcomes of her actions. Following one standard philosophical convention, we will call this stronger thesis consequentialism.2 It seems quite clear that bringing about good outcomes is one thing that there is moral reason to do. But why think that promoting the good is the only thing that morality prescribes? One way of defending this thesis is to employ substantive normative arguments, which seek to show that the plausibility of moral reasons to do other

Law, Morality, and Everything Else: General Jurisprudence as a Branch of Metanormative Inquiry*

In this article, we propose a novel account of general jurisprudence by situating it within the broader project of metanormative inquiry. We begin by showing how general jurisprudence is parallel to another well-known part of that project, namely, metaethics. We then argue that these projects all center on the same task: explaining how a certain part of thought, talk, and reality fits into reality overall. Metalegal inquiry aims to explain how legal thought, talk, and reality fit into reality. General jurisprudence is the part of metalegal inquiry that focuses on universal legal thought, talk, and reality.

NEGOTIATING THE MEANING OF “LAW”: THE METALINGUISTIC DIMENSION OF THE DISPUTE OVER LEGAL POSITIVISM

One of the central debates in legal philosophy is the debate over legal positivism. Roughly, positivists say that law is ultimately grounded in social facts alone, whereas antipositivists say it is ultimately grounded in both social facts and moral facts. In this paper, I argue that philosophers involved in the dispute over legal positivism sometimes employ distinct concepts when they use the term “law” and pick out different things in the world using these concepts. Because of this, what positivists say might well then be true of one thing (e.g., law1) but false of another (e.g., law2). Accepting this thesis does not mean that the philosophers engaged in this dispute are “talking past each other” or engaged in a “merely verbal dispute” that lacks substance. I argue that participants in this dispute are sometimes arguing about what they should mean by the word “law” in the context at hand. This involves putting forward competing proposals about which concept the word “law” should be used ∗Thanks to Larry Alexander, Derek Ball, Chris Barker, Charles Beitz, Mitchell Berman, David Braddon-Mitchell, Mark Budolfson, Alexis Burgess, Herman Cappelen, David Chalmers, Matthew Chrisman, Shamik Dasgupta, Ronald Dworkin, Andy Egan, Chris Essert, Max Etchemendy, Stephen Finlay, Johann Frick, Lyndal Grant, Mark Greenberg, Sally Haslanger, Scott Hershovitz, Torfinn Huvenes, Frank Jackson, A.J. Julius, Sam Levey, Dustin Locke, Peter Ludlow, Berislav Marušić, Eliot Michaelson, Tristram McPherson, Hille Paakkunainen, Philip Pettit, Peter Railton, Mark Richard, Lea Schroeder, Scott Shapiro, Seana Shiffrin, Michael Smith, Justin Snedegar, Tim Sundell, Rachel Sterken, Sharon Street, Folke Tersman, Jean Thomas, Amie Thomasson, Kevin Toh, Pekka Väyrynen, Grégoire Webber, Daniel Wodak, and an anonymous referee for LEGAL THEORY. Earlier versions of this paper were presented at the Oxford Jurisprudence Discussion Group, Queen’s Law School, the 2015 Analytical Legal Philosophy Conference at the University of Southern California, and the University of Southern California Philosophy Department. Closely connected material was presented at the Arché philosophical research centre at the University of St. Andrews, the Center for Study of Mind in Nature (CSMN) at the University of Oslo, a workshop on Normativity and Reasoning at NYU Abu Dhabi, a workshop on Conceptual Engineering at the MIT Philosophy Department, a workshop in honor of Frank Jackson in Bundanoon, Australia, and the Value Theory Discussion Group at the Rutgers Philosophy Department. Thanks to everyone who participated in those discussions.