Legal disagreements and new theories of reference

Abstract

According to Hartian positivists, law is a conventional practice that requires a convergence that includes not only the regularity of behavior but also of certain beliefs and attitudes. It is easy to conclude that in this framework the meaning of terms is determined by shared criteria that are transparent to all parties, a form of semantic descriptivism. This, at least, is the way in which Dworkin and his followers have interpreted Hart's positivist stance. The problem is that disagreements often arise on how to interpret the words of the law, and this fact seems to conflict with the emphasis of positivism on the idea of agreement, or so it is argued. If the meaning of legal terms depends on shared criteria, why do individuals disagree? And if they disagree, what does their disagreement consist in? The discussion about how to account for interpretive disagreement can be seen as a discussion about how to account for the meaning of terms, and hence as a discussion about what kind of theory of meaning explains the existence of disagreement and the grounds for its resolution. In some cases a descriptivist approach to semantics seems to be correct, whereas other cases seem to speak in favor of non-descriptivist theories of reference. In this work we will examine critically how two competing approaches to meaning account for disagreements. We will argue that Hart's conventionalist stance does not commit him to descriptivism. That non-descriptivist theories of reference, properly understood, can account for a vast array of cases of interpretive disagreement; that an account of different kinds of disagreement can be provided from a conventionalist perspective within the framework of non-descriptivist theories of reference, and hence that the dispute between Dworkinians and Hartians does not depend on Hart's commitment to one or another semantic theory. We argue that both in and out of the legal context, a host of non-semantic considerations have to be taken into account in the adjudication of disputes.