Mark Greenberg has suggested that there is a ‘standard picture’ of how law works, according to which the contribution that a legal text makes to the content of the law is constituted by the meaning...

Scott Shapiro recently suggested that Ronald Dworkin’s critique in Chapter 1 of Law’s Empire represents the greatest threat currently facing legal positivism. Shapiro had in mind, not the semantic sting argument (‘the SSA’), but rather what I call ‘the argument from theoretical disagreement’ (or ‘the ATD’). I contend that Shapiro was right to focus on the ATD, but that even he underestimated just how serious a challenge it poses to positivism (and perhaps to other theories of law as well). The (...) ATD, I argue, is an objection to any theory of law that denies that legal officials can engage in theoretical disagreement—that is, disagreement about the grounds of law. The SSA then seeks to explain why so many legal philosophers adopt such theories. I argue that the SSA is an implausible explanation of why many legal philosophers deny that theoretical disagreement exists, but that this does not undermine the ATD’s contention that they are wrong to do so. Indeed, given the variety of forms that theoretical disagreement can take, Dworkin’s positivist critics face a very significant challenge in seeking either to explain away the appearance of theoretical disagreement or to develop forms of positivism that can allow for such disagreement. (shrink)

Ronald Dworkin is one of the most important, and one of the most controversial, contemporary legal philosophers. This article elucidates the main aspects of Dworkin's theory of law, discussing both his key criticisms of legal positivism and his own positive views about law. The article also briefly examines some of the major controversies surrounding Dworkin's theory of law, such as the debates arising out of his right answer thesis and semantic sting argument.

Ronald Dworkin’s new book, Justice for Hedgehogs, covers an extremely broad range of philosophical issues. However, its central thesis—the ‘unity of value thesis’—is that conflicts between moral or ethical values are merely apparent and that those values are, in fact, integrated and mutually supporting. Dworkin offers several arguments in support of this thesis, but, in this review, I focus on his attempt to illustrate the unity of value thesis by showing that the best account of certain key values reveals them (...) to be integrated and mutually supporting. I contend that this strategy is more promising than one might initially think, but that it breaks down when we consider the relationship between law and justice. For Dworkin, law is a value and his account of law entails that it can conflict with justice. Moreover, he seems precluded from developing an alternative account of law that does not give rise to such conflicts. However, while these conclusions weaken Dworkin’s case for the unity of value thesis, they do not suffice to refute it. (shrink)

This article responds to Jeremy Waldron's claim that the truth or falsity of moral objectivism makes no difference to the arbitrariness, or otherwise, of adjudication (the ‘no‐difference thesis’). I start by outlining the way in which I believe objectivism and its opponents should be distinguished, before setting out Waldron's arguments in favour of the no‐difference thesis. I then consider a number of ambiguities in that thesis, before criticizing several attempts by Michael Moore to respond to Waldron's arguments. Having cleared the (...) way for a new consideration of this issue, I argue that—depending on which interpretation of them we accept—Waldron's arguments: (i) misrepresent the nature of the debate between objectivists and anti‐objectivists; (ii) beg the question by asserting that objectivism is wrong rather than irrelevant; or (iii) rely upon an indefensible account of political justification. Finally, I offer an example of how the truth or falsity of objectivism can have implications for adjudication, by suggesting two ways in which it may affect the legitimacy of judicial review. (shrink)

Comment on Joseph Raz, From Normativity to Responsibility.

In “Pre-conventions: A fragment of the Background”, Bruno Celano argues for the existence and philosophical significance of what he calls “pre-conventions” – a type of convention distinct from those hitherto discussed in the literature, and which transcends a number of orthodox philosophical distinctions. In these comments, I suggest that Celano may have shown that there is a distinct type of convention governing judgments of style or taste. If so, we may learn some important lessons by examining this new type of (...) convention. However, I express doubts about whether the broader ambitions of Celano’s paper are fulfilled. I contend that pre-conventions are not as common as he suggests, and are not present in some of the other examples he gives. I also express doubts about whether he is right to suggest that there is a distinct type of convention that renders possible the development of conventions of the sort which David Lewis was interested in. (shrink)

The Epilogue reviews the findings presented by indirect ontology. First, indirect ontology discovers a consistency to The Visible and the Invisible which has been overlooked. Secondly, it provides a resolution to problems which are first uncovered in his Phenomenology of Perception, notably the connection between tacit and spoken cogitos, as well as the relationship of silence to speech. Thirdly, indirect ontology serves as a useful tool in understanding the development of Merleau-Ponty's thought from its beginning in The Structure of Behavior (...) through his ontological phase. Finally, indirect ontology brings to clarity the uniqueness of Merleau-Ponty's philosophy which is often overlooked; this uniqueness points to the fact that Merleau-Ponty's thought seems to move in a direction different from many of his successors and interpreters. ;Chapter four of the dissertation begins a positive delineation of Being by means of the indirect ontology examined in the first three chapters. This chapter situates philosophy within the hyperdialectic, thus showing how philosophy can investigate the world from which thought emerges. Chapter five unites the sequential analyses of the first four chapters in order to provide a detailed account of how the natural world serves as the basis of all human expression. Chapter six builds upon the description of nature provided by indirect ontology; in this chapter the working notes of The Visible and the Invisible are examined in order to discuss the philosophy of history and of culture provided by indirect ontology. ;The first three chapters of the dissertation examine the ontology of Being provided by perception. Chapter one concerns itself with our radical dependence upon perception, our "perceptual faith" in the world. By examining Merleau-Ponty's discussion of traditional ontology the dissertation develops the differences between ontology and the perceptual process. In chapter two the gap between ontology and perception is eliminated by providing an ontology which conforms to the manner in which perception presents itself to the body. This union of perception and human expression is made possible by Merleau-Ponty's implementation of hyper-reflection, the theory that perception is itself a form of originary reflection. Hyper-reflection is used to explain the existence of myself, others, and thinking within a shared visible world. Chapter three investigates the natural dialectic or hyper-dialectic which holds between the perceived world and throught; the result is a view of the dialectic which insists that thought remains attached to the perceived world. ;The goal of this dissertation is to present a sustained examination of The Visible and the Invisible. In contrast to the critical literature on Merleau-Ponty which maintains that the work is fragmentary, the position taken in the dissertation is that The Visible and the Invisible is a consistent and cohesive work. The key to unlocking the inner format of The Visible and the Invisible lies in abandoning the popular assumption that the first three chapters of the work are primarily critiques of other philosophers' positions. The dissertation attempts to replace this assumption by seeking, within the resources of the text itself, a new meaning and order. ;In the working notes accompanying The Visible and the Invisible Merleau-Ponty provides the necessary interpretive tool for understanding the work in the form of an "indirect ontology." Indirect ontology is Merleau-Ponty's effort to explain how our perceptual contact with the world is itself the ontological format of all Being. The Visible and the Invisible attempts to account for all phases of human expression through this model. (shrink)

Joseph Raz famously argues that given that the law necessarily claims authority and given the account of authority he provides, exclusive legal positivism is the only tenable theory of law. In this article, I contend that even if one accepts that the law necessarily claims authority and that Raz's account of authority is correct, it does not follow that exclusive legal positivism is the only tenable theory of law. This is because even if the law necessarily claims authority, it need (...) not be capable of satisfying the requirements for possessing authority laid down by the correct account of authority. Thus, even if exclusive legal positivism is the only theory of law according to which the law can satisfy those requirements, this does not show that exclusive legal positivism is correct. (shrink)

RésuméDans Faces of Inequality, Sophia Moreau propose une théorie pluraliste de la discrimination, selon laquelle un comportement discriminatoire implique un ou plusieurs torts, identifiés parmi au moins trois types. Elle ajoute que chacun de ces torts représente un manquement à l'obligation de traiter une personne comme l’égale des autres. Je soutiens que cette seconde affirmation est erronée. Je suggère également qu'il n'est peut-être pas nécessaire pour une théorie pluraliste de la discrimination d'identifier une propriété partagée par les différents types de (...) torts reconnus par la théorie (au-delà du fait qu'ils sont tous présents dans les cas de discrimination répréhensible). (shrink)

Ronald Dworkin has repeatedly claimed that the debate between moral objectivists and anti-objectivists has no implications for legal practice or theory. He has offered two main arguments to support this claim. The first is that while assertions about the truth or falsity of moral objectivism may be intelligible, they are irrelevant to legal practice and theory. The second is more radical, namely, that no assertion can be given an intelligible meta-ethical reading. In this article, I contend that neither argument is (...) sound. The first argument overlooks the variety of ways in which the meta-ethical debate could impact upon legal practice or theory. It also rests upon an uncharitable interpretation of that debate. As for the second argument, Dworkin is correct in claiming that statements seemingly about the truth or falsity of moral objectivism can instead be interpreted as moral statements, but he is wrong to claim that this is the only intelligible reading they can be given. (shrink)