Has Raz Drawn the Semantic Sting?

Has Raz Drawn the Semantic Sting?Author(s): Dale SmithSource: Law and Philosophy, Vol. 28, No. 3 (May, 2009), pp. 291-325Published by: SpringerStable URL: http://www.jstor.org/stable/40284673 .

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Law and Philosophy (2009) 28:291-325 © Springer 2008 DOI 10.1007/sl0982-008-9038-6

DALE SMITH

HAS RAZ DRAWN THE SEMANTIC STING?

(Accepted 15 September 2008)

Of the many arguments Ronald Dworkin has employed against legal positivism, perhaps the most famous (or infamous) is the semantic sting argument (henceforth, "the SSA").1 Positivists have responded to the SSA in several different ways. In the Postscript to The Concept of Law, HLA Hart denied that he held the view that is purportedly vulnerable to the SSA.2 Such a denial also forms part of Jules Coleman's response, though Coleman also contends that Dworkin's argument is unsound.3 By contrast, Joseph Raz concedes that, if sound, the SSA refutes the view he holds, but denies that the argument is sound (TV 3). In other words, Raz accepts (a variant of) the "criterial" approach that Dworkin criticizes, and that Hart and Coleman

1 Dworkin defines "the semantic sting" as the argument (which he rejects) that "... unless lawyers and judges share factual criteria about the grounds of law there can be no significant thought or debate about what the law is."

(Dworkin, Ronald, Law's Empire (Oxford: Hart Publishing, 1998), p. 44, henceforth referred to as "LE" followed by the relevant page number.) However, I will follow Raz in using the phrase "the semantic sting argument" to refer to Dworkin's own argument, not to the argument he rejects: Raz, Joseph, Two Views of the Nature of the Theory of Law: A Partial

Comparison', in Hart's Postscript: Essays on the Postscript to the Concept of Law (Jules Coleman ed.) (Oxford: Oxford University Press, 2001), pp. 1-37 at 1 1 note 23 (henceforth referred to as "TV", followed by the relevant page number).

1 Hart, H.L.A., The Concept of Law (2nd edition) (Oxford: Clarendon Press, 1994), pp. 246-247.

3 E.g. Coleman, Jules, 'Methodology', in The Oxford Handbook of

Jurisprudence and Philosophy of Law (Jules Coleman and Scott Shapiro eds.) (Oxford: Oxford University Press, 2002), pp. 31 1-351 at 314-335; Coleman, Jules, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (Oxford: Oxford University Press, 2001), pp. 180-182.



292 DALE SMITH

disown, but contends that the SSA fails to show that this approach is mistaken.

My aim in this article is to determine whether Raz's strategy is successful. As it is only one of several responses to the SSA, I do not purport to provide a complete assessment of the SSA. Nevertheless, an assessment of Raz's response should prove valuable. Raz is the only major figure to respond to Dworkin by defending (a variant of) the "criterial" approach that Dworkin criticizes. Moreover, we shall see that Raz offers several ingenious suggestions as to how the "criterial" approach might withstand Dworkin's attack. An assessment of his response should, therefore, advance our understanding of the strengths - and weaknesses - of that approach. Further- more, if Raz's response is successful, we can conclude that the SSA fails even against someone who explicitly accepts (a variant of) the view it seeks to refute. If, on the other hand, Raz's response is unsuccessful, we can rule out one possible reaction to the SSA, leaving us with a reduced range of responses to consider in future.

I begin, in Part I, by outlining the SSA. Part II then presents Raz's response, which has three components. He first rejects what he calls the "individualistic picture" of what it is to share criteria for the application of a concept, before offering two separate refutations of the SSA. In Part III, I assess Raz's response. I argue that, while his approach can account for some possible theoretical disagreements about law, it cannot account for the theoretical disagreements Dworkin discusses in Law's Empire. This is true whether we consider the three components of Raz's response separately or collectively. I conclude that its inability to account for the theoretical disagreements discussed by Dworkin renders Raz's response to the SSA unsuccessful. Finally, in Part IV, I consider whether Raz's discussion of Dworkin's claim that jurisprudence is the "silent prologue to any decision at law" (LE 90) suggests a different response to the SSA, according to which Dworkin's purported examples of theoretical disagreement do not concern the concept of law at all.



HAS RAZ DRAWN THE SEMANTIC STING? 293

I. THE SSA

A. Theoretical Disagreement

Dworkin's concern in Chapter 1 of Law 's Empire is with disagreement about law. In particular, he is concerned with "theoretical" disagreement about law, which he defines as disagreement "... about the grounds of law, about which other kinds of propositions, when true, make a particular proposition of law true." (LE 5) He claims that lawyers and judges often appear to engage in such disagreements, and offers several examples (LE 15-30). It is worth briefly setting out three of these examples, since they will become important later in our discussion. (I shall refer to these as Dworkin's "sample cases".)

Dworkin's first example is Riggs v Palmer,4 which raised the question of whether someone could inherit under a will when he murdered the testator in order to inherit. The judges in Riggs were divided over how to interpret the New York statute of wills that governed this case. More precisely, says Dworkin, they disagreed about what law was created by that statute. The minority adopted a theory of statutory interpretation according to which the words of a statute should be given their literal, or acontextual, meaning. The majority adopted a different theory, according to which legislators' intentions are important in determining what meaning to give to the words of a statute. The majority's theory also stated that a statute should be interpreted in light of fundamental maxims of the common law (such as the principle that no one should profit from their own wrong). Their differing theories of statutory interpretation led the majority and minority to disagree over whether one is permitted to inherit under the will of a person one has murdered.

Dworkin's second example is Tennessee Valley Authority v Hill,5 which concerned whether a dam construction project breached the Endangered Species Act.6 Again, Dworkin regards this as a dispute about which theory of statutory interpretation is correct. The majority held that, when the text

4 115 NY 506 (1889). 5 437 US 153 (1978). * The Endangered Species Act of 1973,87Stat.884, 16USCs. 1531 (1976ed.).



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of a statute is clear, courts cannot refuse to apply it simply because this would produce an absurd result. Rather, they can refuse to apply it only if it is shown that the legislature intended the opposite result to the one required by the clear wording of the text. The minority disagreed, holding that a statute should not be interpreted to produce an absurd result if there is another permissible interpretation that is more compatible with commonsense and the common good. This is not, says Dwor- kin, a disagreement about empirical facts, or about what new law judges should make, or about whether judges should dis- obey existing law. Rather, it is a disagreement about what law was made by the Endangered Species Act.

Dworkin's third example involves a dispute about the doc- trine of precedent, rather than statutory interpretation. McLoughlin v O 'Brian7 was a House of Lords decision concerning whether a plaintiff could recover damages for nervous shock sustained when the defendant negligently caused an accident which resulted in the death of the plaintiffs daughter. Unlike previous cases in which plaintiffs had recovered for nervous shock resulting from injury to a close relative, the plaintiff in McLoughlin was not present at the scene of the accident or its immediate aftermath. While the Law Lords unanimously upheld the plaintiffs appeal, Dworkin interprets them as disagreeing about the appropriate basis on which to distinguish precedents such as those set by the previous cases on nervous shock. In particular, they disagreed about whether policy considerations provide the right type of reason for dis- tinguishing a precedent, and so disagreed about the proper role of policy considerations in determining the content of the common law. Indeed, Dworkin says, the "... various judges who adjudicated Mrs. McLoughlin's case disagreed about the force and character of precedent as a source of law ..." (LE 38-39).

B. The Semantic Sting

Having offered several examples of what appears to be theoretical disagreement, Dworkin argues that positivism is

7 [1982] 2 All ER 298.




incompatible with the existence of such disagreement. This is because positivism is a "plain fact" theory of law (LE 33). Plain fact theories of law claim "... that law depends only on matters of plain historical fact, that the only sensible disagreement about law is empirical disagreement about what legal institutions have actually decided in the past ..." (LE 31). On this view, what appears to be theoretical disagreement must in fact be something else, such as disagreement about what the law should be.

Why do positivists adopt a view that requires them to insist that the appearance of theoretical disagreement is illusory? Some legal philosophers, Dworkin claims, offer a surprising answer:8

They say that theoretical disagreement about the grounds of law must be a pretense because the very meaning of the word "law" makes law depend on certain specified criteria, and that any lawyer who rejected or challenged those criteria would be speaking self-contradictory nonsense. (LE 31)

On this view, we follow shared rules in using any word. These rules set out criteria that supply the word's meaning, and our rules for using the word "law" tie law to plain historical facts. We may not be aware of these rules "... in the sense of being able to state them in some crisp and comprehensive form." (LE 31) However, this should not trouble us, since we often follow rules of language of which we are not fully aware. It is legal philosophy's task to identify the rules we use when employing the word "law":

We all use the same factual criteria in framing, accepting, and rejecting statements about what the law is, but we are ignorant of what these criteria are. Philosophers of law must elucidate them for us by a sensitive study of how we speak. (LE 32)

Dworkin dubs theories that purport to identify these criteria "semantic theories of law".9 "Semantic theories suppose that

8 Dworkin seems to treat anyone who accepts a non-interpretive version of positivism as being committed to giving this answer, since he treats his refutation of this answer as a refutation of all non-interpretive versions of positivism. (Whilst acknowledging that there are variations on this answer, he regards his refutation as applying to those variations as well: see text preceding note 1 5 below.)

Dworkin claims that not all semantic theories of law are positivist theories, but he focuses on those that are, and I shall do likewise.



296 DALE SMITH

lawyers and judges use mainly the same criteria (though these are hidden and unrecognized) in deciding when propositions of law are true or false; they suppose that lawyers actually agree about the grounds of law." (LE 33)

However, this still does not take us to the heart of positivists' reasons for insisting that the appearance of theoretical disagreement is misleading. Why do they claim that we follow shared rules for using the word "law"? To answer this question, Dworkin suggests, we must note the following argument: If two lawyers are actually following different rules in using the word "law," using different factual criteria to decide when a proposition of law is true or false, then each must mean something different from the other when he says what the law is. Earl and Gray10 must mean different things when they claim or deny that the law permits murderers to inherit: Earl means that his grounds for law are or are not satisfied, and Gray has in mind his own grounds, not Earl's. So the two judges are not really disagreeing about anything when one denies and the other asserts this proposition. They are only talking past one another. Their arguments are pointless in the most trivial and irritating way, like an argument about banks when one person has in mind savings banks and the other riverbanks. Worse still, even when lawyers appear to agree about what the law is, their agreement turns out to be fake as well, as if the two people I just imagined thought they agreed that there are many banks in North America. (LE 43-44, emphasis in original, footnote added)

Positivists, Dworkin claims, accept this argument as valid (that is, they agree that the conclusion follows from the premises), and so deny the existence of theoretical disagreement in order to avoid the conclusion that lawyers and judges talk past one another. In other words, positivists are victims of the semantic sting, claiming something that appears false (namely, that lawyers and judges use the same criteria to determine when propositions of law are true) because they mistakenly believe that they must claim this if they are to allow for sensible discourse about law.

Dworkin concludes that we must reject the claim that agreement and disagreement about law are possible only if we share the same criteria for determining when propositions of law are true. This, in turn, removes the motivation behind

10 Earl and Gray were two of the judges in Riggs.




attempts to provide a semantic theory of law. l l This does not mean that we must reject positivism, but it does mean that we must radically re-characterize it (as an "interpretive", not a semantic, theory).12

II. RAZ'S RESPONSE

A. Semantic Theories and Explanations of Concepts Raz regards the aim of the SSA as being to establish the thesis that a theory of law cannot be an explanation of the meaning of the word "law".

Until Dworkin published his semantic sting argument, many, including myself, took [that] thesis to be as firm and as uncontroversial as anything in legal philosophy at the time. It was, therefore, surprising that Dworkin saw a need to argue for it, and even more surprising that he thought that in doing so he was rebutting the conceptions of legal philosophy endorsed by many philosophers who did not think of themselves as in the business of explaining the meaning of the word "law". (TV 2, footnote omitted)

Indeed, these philosophers were right not to view their theories as explaining the meaning of the word "law". The word "law" applies to many things (such as scientific and divine laws) with which legal philosophy is not concerned. This suggests that, rather than explaining the meaning of the word "law", positivists should (and do) seek to explain a particular concept of law (namely, the concept of law with which legal philosophy - as opposed to science or theology - is concerned).13 For present purposes, Raz adopts a broad understanding of what it is to explain a concept, such that it includes explaining "... (the puzzling aspects of) what the concept is a concept of ..." (TV 8).

1 1 Dworkin claims that semantic theories are inappropriate with regard to not just law, but many other words or concepts as well. However, he leaves open the possibility that they may be appropriate with regard to some words or concepts, such as "book" (LE 46).

Dworkin argues that positivism should be rejected even when characterized as an interpretive theory (LE 114-150). I shall not consider this strand of his attack on positivism. 13 Raz's claim that the word "law" can be used to pick out several different concepts (without, he adds, necessarily being multivocal), and that legal philosophy is concerned with one of those concepts, is an interesting (and controversial) one, but not one that I can pursue here.



298 DALE SMITH

It might seem, therefore, that positivists can simply ignore the SSA. If its target is explanations of the meaning of the word "law", and positivists do not provide such explanations, then it appears that the SSA does not apply to positivists' theories. However, Raz suggests, the SSA might apply to positivists' theories, despite the fact that positivists are concerned with the concept of law, rather than the meaning of the word "law". "[A]n explanation of the concept of law is not a semantic account of anything, but that does not show that the semantic sting argument does not apply to it." (TV 12) Indeed, if sound, the SSA does apply to "criterial explanations" of the concept of law. Therefore, rather than regarding the SSA as irrelevant to positivists' concerns, we should treat it as claiming that certain concepts (including the concept of law) cannot be given a criterial explanation.

What is a criterial explanation? Raz states that a criterial explanation of a concept "... (1) states a rule setting out conditions for the (correct) use of a concept; and (2) is a true explanation by virtue of the fact that it is a correct statement of the conditions for the correct use of the concept actually used by those who use it." (TV 12, footnote omitted)14

Whether Raz adopts the most charitable interpretation of Dworkin's discussion is debatable. Dworkin acknowledges that talk of "semantic theories of law" requires explanation. He concedes that not all positivists claim to explicate the meaning of the word "law"; some seek instead to describe the use of legal concepts (which he equates with describing the circum- stances in which legal propositions are regarded by all competent lawyers as true or false). And he states that the phrase "semantic theories of law" is meant to cover both types of theory (LE 32-33). Therefore, it is arguable that Dworkin intends to refute criterial explanations of the concept of law.15

14 Raz acknowledges that there is a circularity in this characterization of a criterial explanation, but claims that it can be easily eliminated (TV 1 2 note 25).

Dworkin has recently admitted that the semantic sting needs to be characterized more broadly than it was in Law 's Empire, but his main motivation seems to be to ensure that it also covers accounts that regard law as a natural kind: Dworkin, Ronald, Justice in Robes (Cambridge, MA:

Belknap Press, 2006), pp. 225-226.




This interpretive issue is, however, of only secondary importance. Raz is right to focus on the crucial question, which is whether (irrespective of Dworkin's intentions) the SSA shows that the concept of law is not amenable to criterial explanation.

B. The Rejection of Individualism

Applying the SSA to criterial explanations of the concept of law, Raz treats the crux of the argument as the following:

(1) concepts that can be criterially explained cannot be the subject of theoretical disagreement;

(2) the concept of law can be the subject of theoretical disagreement; (3) therefore, the concept of law cannot be criterially explained.

Yet, Raz asserts, it is unclear why criterial explanations cannot be provided for concepts regarding which there can be theoretical disagreement. Dworkin may be assuming that, if a concept can be criterially explained, then all competent users of that concept must agree on the criteria for its application (in which case, they cannot engage in theoretical disagreement). However, Raz argues, any such assumption is mistaken.

To see why, we must distinguish two pictures of what it is to share criteria for the correct use of a concept - the individualistic and the non-individualistic picture. Raz starts with the former:

The individualistic picture regards each person as holding to a set of criteria that he or she follows when applying the concept. In principle each person may be the only person using that concept, i.e. the only one using these criteria. Those who have the concept may make mistakes in application (due to misperception, miscalculation, etc) but cannot make mistakes about the criteria. (TV 15)

It follows that, if two people disagree about the criteria for

applying a concept, they must have different concepts (rather than one or both of them being mistaken about the criteria for applying a shared concept).

Dworkin's characterization of the semantic sting, Raz suggests, contains traces of this individualistic picture. However, this picture has been shown (by Wittgenstein, Putnam and



300 DALE SMITH

Bürge, among others) to be mistaken.16 This does not require us to reject the criterial approach to explaining concepts. The key idea underlying that approach is that, when one uses a concept, one relies on a rule that sets out the criteria for the correct use of that concept. This does not mean that speakers always consider the rule before using the concept. Rather, it means that they take themselves to be using the concept according to the rule - that is, they hold themselves responsible to the rule, in the sense that they must admit they are mistaken if they breach the rule.

Where the individualistic approach goes wrong is in thinking that the criteria set by each person's personal rule for the correct use of terms and

concepts are fully specified. In fact, their personal rules are not specified. Each person takes his use of terms and concepts to be governed by the common criteria for their use. That is all their personal rule says. The criteria that govern people's use of language are simply the criteria generally relied on in their language community for the use of those terms. (TV 16)

In other words, Raz claims that we should abandon the individualistic picture for the non-individualistic one.17 The latter allows that people may be mistaken about the criteria for the correct use of a concept, since the correct criteria are those that are generally believed to be correct (not those that any particular individual believes to be correct) (TV 16-17).

Raz regards it as "a moot point" whether Dworkin assumes that supporters of criterial explanations must hold the individualistic picture (TV 18). He states that Dworkin seems unaware of the possibility that people may have only partial knowledge of the rules governing the use of their concepts,18 and that this affects the "force" of the SSA. The SSA targets those who deny that there can be disagreements about the criteria for the correct use of a concept, yet the non- individualistic picture allows that people may be at least partly

16 It is worth noting that, while the authors referred to by Raz reject the individualistic picture, some (arguably all) would also reject Raz's non-individualistic picture.

17 At least with regard to most concepts, including law (TV 17). 18 As opposed to the possibility that people may be unable to articulate

clearly the rules they do know.




mistaken about those criteria (possibly causing them to disagree about those criteria).

It is unclear whether Raz regards this as a refutation of the SSA. He states:

This means that there could be disagreements about the criteria for the use of concepts, even if the concepts are susceptible to criterial explanations. But in and of itself this does not explain the possibility of theoretically interesting disputes about such criteria. To do that we have to add other elements to the rejection of individualism. (TV 19)

One possible interpretation of this passage is that Raz regards the rejection of individualism as not, by itself, sufficient to refute the SSA. This interpretation draws support from the fact that, unlike the rejection of individualism, Raz explicitly describes the two arguments considered in the next Section as refutations of the SSA (TV 25). However, if (as I suggest in Section III. A) he interprets the SSA as claiming that criterial explanations cannot allow for any theoretical disagreement, then he is committed to regarding the rejection of individualism as a refutation of the SSA. Thus, perhaps the better interpretation is that Raz regards the rejection of individualism as refuting the SSA, but not as showing that there can be theoretically interesting disputes about the criteria for the use of a concept.19 Either way, he proceeds to offer two further arguments that he clearly does regard as refutations of the SSA.

C. Two Refutations of the SSA

The first of these arguments (henceforth, "the argument from complexity") begins by noting that the criteria used in explaining a concept typically focus on its relation to other concepts or its application to some "criterial examples" (TV 19). Moreover, most concepts do not have a canonical explanation. Instead, they can be explained in many different ways (by reference to a variety of other concepts or examples), depending on the context in which an explanation is called for

19 Possibly because the non-individualistic picture shows only that we can

disagree about what criteria are generally used in our language community for the application of a concept.



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(in particular, the puzzles it is meant to solve and the level of understanding of the people to whom it is addressed). Finally, explanations of a concept are rarely exhaustive; instead, they focus on some of the essential features of the concept, but not others.

All this points to endless possibilities of disagreement. Imagine that you are used to explaining a concept one way. I am used to explaining it another

way. Do we agree? And if we do not, who is right? These questions are as

complex as any questions comparing different concepts or analysing different examples. (TV 20)

In other words, because there are many different ways of

explaining concepts, and no explanation is likely to be exhaustive, there is plenty of room for differences of opinion regarding the criteria for the correct use of a concept. Even though there are shared rules governing the use of concepts, those rules are not so transparent as to leave no room for disagreement. Indeed, people may dispute each other's explanation of a concept even when there is no disagreement between them, because they may not realize that they are offering compatible explanations.

Raz clearly regards the argument from complexity as refut-

ing the SSA: "If the remarks above are correct, then the semantic sting argument does not have a sting. Its conclusion was that there cannot be disputes about the criteria for the

application of criterially explainable concepts. That conclusion is mistaken." (TV 21)

Raz introduces his second argument (henceforth, "the

argument from interrelated concepts") via an example. He asks us to assume that a war cannot be just unless the mea- sures taken are proportionate to the harm one is trying to avoid. He then claims that it does not follow that we must understand the idea of proportionality of harm in order to understand the concept of a just war. Instead, we understand the concept of a just war if we understand that it includes a requirement of proportionality. We may not be able to determine whether a particular war is just if we cannot determine whether various harms are proportionate, but we can still understand the concept of a iust war.




In other words, the criteria by which we judge proportionality of harm are not part of the rule governing the correct use of the concept of a just war. We can see why this is, says Raz, by considering how things would be if the criteria for one concept were also part of the criteria for any other concept that is necessarily connected with it. Since, when explaining concepts, we inevitably use other concepts, we would end up with a vast array of concepts sharing the same criteria, such that we understood either all of them or none of them. "That is not how concepts are, and they are not like that because of the relative independence of interrelated concepts." (TV 23)

Raz claims that Dworkin overlooks the relative independence of interrelated concepts when he claims that criterial explanations cannot account for theoretical disagreement. According to Raz, Dworkin equates theoretical disagreement about law with disagreement about the truth-conditions of legal propositions, yet both disagreement about whether proportionality is a requirement of a just war and disagreement about the appropriate test of proportionality are disagreements about the truth-conditions of the proposition "X is a just war". Therefore, Dworkin is committed to regarding both as theoretical disagreements - that is, as disputes about the criteria for the application of the concept of a just war. This overlooks the relative independence of interrelated concepts.

Raz then asks us to assume that the concept of a just war can be criterially explained, but the notion of proportionality of harm must be explained by Dworkin's interpretive method. Since the notion of proportionality of harm is an interpretive notion, there can be theoretical disagreement about proportionality of harm. However, because (we are assuming) proportionality of harm is a prerequisite for a war to be just, theoretical disputes about proportionality of harm lead to disputes regarding the truth-conditions of statements about just war. Yet, Raz argues, Dworkin equates theoretical disagreement with disagreement about the truth-conditions of the relevant class of propositions. Thus, there can be disagreements about the truth-conditions of statements about just war - that



304 DALE SMITH

is, theoretical disagreements about the concept of a just war - even though that concept is criterially explainable.

Raz acknowledges that this refutation of the SSA presup- poses that some concepts are not criterially explainable. How- ever, he claims that there is no reason why someone who believes that many concepts (including the concept of law) can be criterially explained need deny this (TV 24).

III. ASSESSING RAZ'S RESPONSE

A. Two Versions of the SSA

In assessing Raz's response to the SSA, we must distinguish between what I shall call the strong and weak versions of the SSA. The strong version claims that criterial explanations of the concept of law cannot account for any theoretical disagreement about law. The weak version claims that criterial explanations of the concept of law cannot account for all the theoretical disagreements about law that arise (or could arise) in practice.

Raz seems to interpret Dworkin as accepting the strong version of the SSA. For example, he represents Dworkin as asserting that: "Criterial explanations cannot explain concepts regarding which [theoretical] disputes are possible." (TV 14) Later, he states that the conclusion of the SSA is that "... there cannot be disputes about the criteria for the application of criterially explainable concepts." (TV 21) Both quotes entail that theoretical disagreement is impossible with regard to criterially explainable concepts, and so strongly suggest that Raz believes that Dworkin denies that criterial explanations can account for any theoretical disagreement. Moreover, we shall see that Raz's response to the SSA seems designed to show that criterial explanations can account for some theoretical disagreement, suggesting that he takes as his target the claim that criterial explanations cannot account for any theoretical disagreement.

20 Coleman & Simchen also seem to target the strong version of the SSA, when they argue that sophisticated versions of criterialism can allow for the possibility of theoretical disagreement: see Coleman, Jules and Simchen, Ori, "'Law'", Legal Theory 9 (2003): 1-41, at 9.




For reasons that will emerge, I believe that Raz succeeds in refuting the strong version of the SSA (that is, he shows that criterial explanations of the concept of law can account for some theoretical disagreements about law). This is an important achievement. It is tempting to assume that, if the SSA is sound, criterial explanations cannot account for any theoretical disagreement. Indeed, Dworkin sometimes seems to suggest precisely this. In refuting the strong version of the SSA, Raz shows that criterial explanations possess greater resources with which to cope with theoretical disagreement than one might have thought.

However, Raz should not be content with refuting the strong version of the SSA. It is unclear whether Dworkin embraces the strong version. There is some textual evidence that he does.21 However, there is also textual evidence pointing in the opposite direction. Dworkin suggests that semantic theorists could use a strategy he calls the "borderline defense" to explain some disagreements about the criteria for applying the concept of law, but not the disagreements that arose in his sample cases (LE 40-43). This suggests that he recognizes that criterial explanations may be able to account for some instances of theoretical disagreement, but does not regard this as sufficient to vindicate such explanations. Moreover, perhaps the crux of his argument is that positivists' commitment to criterialism leaves them unable to explain the theoretical disagreements lawyers and judges actually have.22 This suggests that Dworkin's claims cannot be refuted by showing that criterial explanations can account for some possible theoretical disagreements; rather, it must be shown that they can account for the theoretical disputes that actually arise in legal practice.

21 See, e.g. LE 31, where Dworkin claims that, on the "plain fact" view of law, the only sensible disagreement about law is empirical (as opposed to theoretical) disagreement.

See, e.g. his claim that semantic theories "... fit[] badly with the kinds of disagreements lawyers actually have." (LE 46) See also LE 15: "I hope [Dworkin's sample cases] will provide ... some sense of the actual tone and texture of legal argument. This last reason [for providing these examples] is the most important, for in the end all my arguments are hostage to each reader's sense of what does and can happen in court."



306 DALE SMITH

Whether Dworkin has in mind the strong or weak version of the SSA is of only secondary importance, however. What is crucial is whether, to show that criterial explanations of the concept of law are flawed and that positivists are led astray by their commitment to such explanations, he needs the weak or strong version to be correct. There is reason to think that the former is sufficient. Criterial explanations of a concept cannot be correct if they cannot account for the ways in which the concept is used (especially since they equate the correct conditions for the use of a concept with the conditions actually used by those who employ the concept.23) This includes the ways in which people disagree about the use of the concept. This suggests that it is not enough that criterial explanations of the concept of law can account for some possible theoretical

disagreements about law. If there are other theoretical disagreements which people actually (or could potentially) engage in, but which criterial explanations cannot account for, then they cannot provide a correct account of the concept of law.

The requirement that criterial explanations be able to account for all the theoretical disagreements that people actually (or could potentially) engage in may appear to be too stringent. However, two points should help to allay this concern. Firstly, the requirement is not that there must be a single criterial explanation of the concept of law that accounts for every theoretical disagreement about law. It may be that an

explanation of the concept of law can be correct even though it is incomplete (that is, even though it does not account for all the ways the concept is used). The requirement suggested above simply reflects the fact that criterial explanations of the concept of law cannot be correct if they are inconsistent with any of the phenomena to be explained (that is, if there are ways in which the concept is used that cannot be accounted for by any criterial explanation).

Secondly, advocates of criterial explanations could potentially satisfy this requirement in many different ways. For example, they might argue that one or more parties to a theoretical disagreement are mistaken, in a way that is consistent

23 See text for supra note 14.




with the criterial approach (see Sections IILB & III.D). Alter- natively, they might seek to show that theoretical disagreement is concerned only with borderline instances of the concept of law (see Section III.D), or that Dworkin's putative examples of theoretical disagreement are not really concerned with the concept of law at all (see Part IV).

Thus, refuting the strong version of the SSA is insufficient to establish that the concept of law can be criterially explained. It is therefore worth considering whether Raz can refute the weak version of the SSA. While he seems not to have the weak version in mind, he may nevertheless provide the resources needed to refute it. I shall test whether this is so by considering whether Raz's arguments show that criterial explanations of the concept of law can account for the theoretical disagreements in Dworkin's sample cases. I begin by considering Raz's two purported refutations of the SSA (the argument from complexity and the argument from interrelated concepts), before considering whether his rejection of individualism enables him to account for Dworkin's examples.24

B. The Argument from Complexity

There are two ways in which the argument from complexity could be used to account for theoretical disagreement. I shall call these the "compatibilist" and "non-compatibilist" limbs of the argument. The compatibilist limb points out that there can be many different, but compatible, criterial explanations of a concept. Concepts can be explained in many different ways, depending (for example) on the puzzles the explanation is meant to solve and the level of understanding of the people to whom the explanation is addressed. These explanations may all be compatible, since they may simply focus on different features of the concept or its relation to different examples or other concepts.

24 I consider in Part IV the objection that Dworkin's sample cases do not involve disagreements about the concept of law, and so do not need to be accounted for by Raz.



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This can lead to theoretical disputes. For example, if two judges seek to resolve different puzzles, or address their explanations to different audiences, they might provide different explanations of the concept of law. If they do not realize that their explanations are compatible, they might dispute each other's explanation even though there is no genuine disagreement between them.25

However, this is not a plausible explanation of the theoretical disagreements in Dworkin's sample cases. The different positions judges adopted in those cases are not compatible. In Riggs, for example, the majority and minority offered inconsistent theories of statutory interpretation (one cannot both be a literalist and believe that statutes should be read in light of fundamental maxims of the common law). Similarly, the judges in McLoughlin reached incompatible conclusions concerning the appropriate role of policy considerations in the common law (it cannot be the case both that policy considerations may be sufficient to distinguish a precedent and that arguments based on policy considerations are the wrong sorts of arguments to make to judges as arguments of law). Thus, while the compatibilist limb may explain some theoretical disagreements about law, it cannot explain the theoretical disagreements Dworkin discusses.

What about the non-compatibilist limb? We know that Raz has in mind a second, non-compatibilist limb of the argument from complexity, since - when presenting that argument - he alludes to the possibility that, if two people explain a concept in different ways, one of them may be mistaken (TV 20). How- ever, it is not clear what form the non-compatibilist limb takes. It is unclear how the argument from complexity (as distinct from Raz's other arguments, such as his rejection of individualism) is meant to show that someone could be mistaken about the criteria she shares for the application of a concept. To say that there are many different ways of explaining a concept, none of which is likely to be exhaustive, is not (by itself) to explain how any of those explanations could be mistaken.

25 Hence Raz's suggestion that disagreement and dispute can come apart in such cases (TV 20).




Perhaps the thought is a simple one. The argument from complexity shows that explaining concepts is a complex undertaking (since there are many ways of doing so, none of which is likely to be exhaustive). Experience tells us that we sometimes make mistakes with regard to complex matters. Thus, the argument from complexity does explain how we can be mistaken about the criteria for the application of the concept of law, potentially leading to theoretical disagreements about law.26

Considered in isolation, the claim that explaining concepts is a complex undertaking, and that we may therefore make mistakes when engaging in that undertaking, appears incontest- able. It is a claim that could be accepted by both supporters and opponents of the criterial approach to conceptual explanation. What is distinctive about Raz's position is that he also claims that the correct criteria for the application of the concept of law are those that are generally believed to be correct (TV 16-17). These two claims are in tension. On the one hand, Raz argues that the criteria for the application of the concept of law are not transparent; on the other hand, he argues that the correct criteria are those that are generally believed to be correct, which suggests that they are transparent (at least to most users of the concept).27

It is important not to overstate this point. Raz's rejection of individualism allows for some mistakes about the relevant criteria (since the correct criteria are those that are generally believed to be correct, not those that any particular individual believes to be correct). This allows for a limited degree of opacity. However, Raz cannot use the argument from complexity to argue for a greater degree of opacity than is permitted by the non-individualistic picture, or else he will lose the degree of transparency he needs for his criterial approach. Therefore, if (as I argue in Section III.D) the non-individualistic picture does not permit the degree of opacity needed to account for Dworkin's examples of theoretical disagreement, Raz cannot

26 This fits with Raz's frequent references (when presenting the argument from complexity) to the "opacity" or lack of "transparency" of concepts (see, e.g. TV 20).

27 1 am grateful to Patrick Emerton for helpful discussions on this point.



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use the argument from complexity to account for those disagreements, either.

C. The Argument from Interrelated Concepts

Let us turn now to the argument from interrelated concepts. I shall grant, for the sake of the argument, Raz's claim about the relative independence of interrelated concepts. My concern will be with whether - if Raz is correct about the relative independence of interrelated concepts - he can use this to refute the SSA.

The argument from interrelated concepts is, I think, meant to be an ad hominem attack on Dworkin. The argument is that - if the concept of a just war can be criterially explained, but is necessarily related to the notion of proportionality of harm which must be explained using Dworkin's interpretive method - then disagreement about the content of the latter notion amounts to theoretical disagreement about the former concept (and so there can be theoretical disagreement about that concept even though it can be criterially explained). Yet there is no reason to think that Raz believes that the concept of a just war (let alone the concept of law) is necessarily related to any "interpretive" concept, since there is no reason to think that he believes that Dworkin's interpretive method provides the proper means of explaining any concept. Rather, his point is that Dworkin is committed to acknowledging that there can be theoretical disagreement about a concept that can be criterially explained, because that concept may be necessarily related to an "interpretive" concept, and because disagreement about the content of the latter concept entails disagreement about the truth-conditions of the former concept (which, Raz claims, Dworkin regards as amounting to theoretical disagreement).

However, is this argument successful even as an ad hominem attack on Dworkin? It targets the strong version of the SSA, since it seeks to show that Dworkin must admit that criterial explanations of a concept could account for some theoretical disagreements (namely, those that arise due to disagreement about the content of another concept to which the first concept




is necessarily related). There is no suggestion that all theoretical disagreements are of this type.28 Yet, in Section III.A, I suggested that Raz also needs to refute the weak version of the SSA, and this necessitates showing that criterial explanations could account for all theoretical disagreements about law.

Can the argument from interrelated concepts be used to meet this challenge? Even if we concede that it can account for theoretical disagreements about law arising out of disputes about the content of another concept that is necessarily related to the concept of law, this is not the only type of theoretical disagreement about law. Often, people disagree about whether the criteria for the application of the concept of law require (or permit) reference being made to that other concept in the first place. Consider, for example, the dispute in McLoughlin. The House of Lords was divided, not over what amounts to a policy consideration, but over whether policy considerations are relevant when determining the content of the common law. The argument from interrelated concepts cannot explain this type of disagreement. McLoughlin was not a case in which a dispute about what counts as a policy consideration led to disagreement about the truth-conditions of statements of law. Rather, it involved a dispute about whether the criteria for the application of the concept of law require (or permit) reference to be made to policy considerations when determining the content of the common law.29

It might be responded that the judges in McLoughlin disagreed about whether policy considerations are relevant when determining the content of the common law precisely because they had different views about what amounts to a policy consideration. In other words, the disagreement about whether policy considerations are relevant was illusory - a result of

28 Indeed, Raz appears to deny this (TV 20-21), though the relevant passage is not entirely clear.

It is tempting to regard the dispute in McLoughlin as being about the criteria of legal validity in a particular jurisdiction, rather than about the criteria for the application of the concept of law. This concern is discussed in Part IV.



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judges talking at cross purposes - since different judges had different things in mind when talking about "policy considerations".30 However, this was not what happened in McLoughlin. The judges in that case all agreed that the main (if not the only) policy consideration arising on the facts was the "floodgates argument", but disagreed about whether that consideration should be taken into account.31

Z). The Rejection of Individualism

I suggested in Section II.B that it is unclear whether Raz regards his rejection of individualism as a refutation of the SSA. However, he does claim that the non-individualistic picture can explain at least some disagreements about the criteria for the application of a concept (on the basis that individuals may misidentify the criteria generally accepted in their language community). Does this enable him to account for Dworkin's examples of theoretical disagreement?

Raz is right to claim that the non-individualistic picture enables supporters of the criterial approach to explain some possible theoretical disagreements. If the correct criteria for the application of the concept of law are those which are generally believed to be correct, this leaves room for some individuals to be mistaken about the generally accepted criteria. This may lead those individuals to disagree with the rest of the language community (or with each other) about what the correct criteria are.

However, this explanation of theoretical disagreement pre- supposes that there are criteria which are generally believed to be correct, but about which some individuals may be mistaken. In the disputes in Dworkin's sample cases, there are no such generally accepted criteria. Dworkin focuses on cases where the judges disagree, and where their disagreement is reflective of

30 This possibility was suggested in conversation by Jeff Golds worthy. JI [1982] 2 All ER 298 at 302-303 (Lord Wilberforce), 305-307 (Lord

Edmund Davies), 309 (Lord Russell), 309-310 (Lord Scarman) and 312, 318 (Lord Bridge). Lords Wilberforce and Bridge considered additional policy considerations, and largely agreed about what these additional considerations were, despite being on opposite sides of the dispute in McLoughlin.




widespread debate among judges and lawyers more generally. These are not cases where a small minority of judges contest (or misunderstand) the orthodox view accepted by the rest of their colleagues. For example, the disputes in Riggs and Hill about statutory interpretation are part of a longstanding and widespread series of debates, with many lawyers and judges taking different sides in those debates. Similarly, the dispute in McLoughlin about the appropriate role of policy considerations in the common law is not an example of a small number of dissenters challenging (or misunderstanding) a generally accepted view. Debate about the appropriate role of policy considerations in the common law has raged for a significant period of time, across a number of jurisdictions,32 without any view clearly emerging as the orthodoxy. Thus, Dworkin's sample cases suggest that it is not the case that there is a set of criteria for the application of the concept of law that is generally accepted by lawyers and judges, but that is occasionally misidentified (or challenged) by a few dissenters.33

Admittedly, much turns on how much disagreement is compatible with a criterion being "generally" believed to be correct. Raz does not offer guidance on this point. Obviously, the existence of some disagreement about a criterion does not show that it is not generally believed to be correct. However, to refute the claim that there are criteria for the application of the concept of law that are generally believed to be correct, it is not necessary that there be a perfectly even split among judges and lawyers. If one more judge accepted a particular criterion than rejected it, this would not show that the criterion was generally accepted, but rather that disagreement was endemic. (I leave to one side the fact that there will often be more than two sides to the dispute, and that the views of some judges and lawyers will

32 McLoughlin provides an example from the UK in the 1980s; more

recently in Australia, compare Cattanach v Melchior (2003) 199 ALR 131 with Travel Compensation Fund v Tambree (t/as R Tambree & Associates) (2005) 222 ALR 263.

This argument is directed against Raz's claim that the correct criteria for the application of the concept of law are those that are generally believed to be correct. It does not purport to refute the views of other positivists, who do not accept that claim.



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be unknown.) Perhaps the most we can say is that, if there is widespread disagreement about the relevant criteria, then it is doubtful whether those criteria can be regarded as generally accepted. Yet this is precisely the situation in Dworkin's sample cases.

At least two objections could be offered to the argument of the last two paragraphs. Firstly, it might be objected that Dworkin's sample cases simply demonstrate that the generally accepted criteria sometimes "run out", leaving lawyers and judges to debate which supplementary criteria should be adopted to fill the gap. In a similar vein, Raz suggests that many concepts (including the concept of law) are vague, and so any accurate explanation of those concepts will also be vague (TV 26). It could be argued that all Dworkin's sample cases do is illustrate this vagueness. Moreover, the fact that there are generally accepted criteria governing most cases, or that the criteria are vague only to a limited extent, is sufficient to ensure that lawyers and judges are all talking about the same thing when they employ the concept of law.

However, consider the suggestion that the criteria for the application of the concept of law are vague, and that Dworkin's sample cases merely illustrate that vagueness. Those criteria are, on Raz's view, conventional. Thus, to render this suggestion plausible, Raz would need to show that the vagueness of those criteria is sufficiently limited as to be compatible with their conventional nature, whilst also being sufficiently exten- sive to account for Dworkin's examples of theoretical disagreement. Perhaps this can be shown, but Raz does not attempt to do so, and it is not at all obvious that he provides the resources needed to do so.34 By contrast, Dworkin argues at length that the disagreements in his sample cases cannot be dismissed as mere borderline disputes about the application of the correct criteria to marginal cases, but rather amount to

34 Raz cannot rely on Coleman's argument that a convention can exist despite there being widespread disagreement about the content of that convention (Coleman, (2001, pp. 74-102)), since Coleman's argument pre- supposes that the content of a convention is not fixed by reference to what

people generally believe its content to be.




pivotal disputes about the correct criteria for applying the concept of law on any occasion (LE 4(M3).

There is a second objection to my argument that Dworkin's sample cases show that there is no set of criteria for the application of the concept of law that is generally accepted by lawyers and judges. One might object that I paid too much attention to what judges say. Judges might share a rule for the application of the concept of law even if they have only partial knowledge of the content of that rule, leading one judge to say that she is following a rule with content X and another to say that he is following a rule with content Y, when both are in fact following the same rule. This, in turn, may explain why there is so much disagreement in Dworkin's sample cases.

However, if judges are following the same rule, we might expect them generally to reach the same conclusions.35 This is not what happened in Dworkin's sample cases. In those cases, some judges reached conclusions that were incompatible with the conclusions reached by other judges. This occurs frequently enough to throw into doubt the hypothesis that judges share the same rule for applying the concept of law, though they may misstate (and/or misapply) that rule. If two judges say that they are following different rules and, in doing so, frequently reach different conclusions, it is hard to shake the suspicion that they are in fact following different rules.

Or is it? Raz could argue that judges reach different conclusions even though they share the same rule, precisely because some of them are mistaken about the content of that rule. We are, the argument continues, justified in regarding them as sharing the same rule, despite the fact that they frequently reach different conclusions, because they all hold themselves responsible to the same rule, in the sense that they would admit they were mistaken if they were persuaded that they had breached the rule generally accepted within their language community.

Prima facie, this argument fits well with Raz's account of the criterial approach. On his account, one relies on a rule that sets

35 Of course, judges might share a rule, but disagree about how to apply that rule to particular cases, and so reach different conclusions. However, the judges in Dworkin's sample cases appeared to disagree about which rule should be applied, not about how to apply a shared rule to the facts of the case.



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out the criteria for the correct use of a concept, in the sense that one takes oneself to be using the concept according to that rule. In doing so, one holds oneself responsible to that rule, in the sense that one must admit one is mistaken if one breaches the rule. On the non-individualistic picture, the content of that rule is given by the criteria generally relied on in one's language community for the use of that concept, and so "[e]ach person takes his use of terms and concepts to be governed by the common criteria for their use." (TV 16)

If not for his other theoretical commitments, this argument might enable Raz to explain widespread theoretical disagreement, on the basis that one or more judges are (perhaps radically) mistaken about the content of a rule that they all hold themselves responsible to. However, we saw in Section III.B that Raz has difficulty allowing for widespread error regarding the criteria for applying the concept of law, since he claims that the correct criteria are those that are generally believed to be correct. This suggests that his non-individualistic picture (which explains theoretical disagreement on the basis that individuals can be mistaken about the criteria generally accepted within the language community) cannot be used to explain instances of theoretical disagreement where both sides have very substantial support within the relevant language community. In such cases, there is no criterion that is generally believed to be correct. I argued earlier in this Section that Dworkin's sample cases are of this type. Raz's non-individualistic picture will, therefore, struggle to account for the disagreement in those cases.36

36 Can Raz avoid this problem (and many of the other problems I have raised) by abandoning his claim that the correct criteria are those that are generally believed to be correct? Perhaps, but this would be no simple matter. A central question that any version of criterialism must answer is "what makes certain criteria the correct criteria for the application of a particular concept?" It is Raz's answer to this question that precludes him from being able to account for widespread theoretical disagreement. However, it is far from clear that there is an alternative answer that is both consistent with Raz's criterialism and that would enable him to account for widespread theoretical disagreement. Indeed, Raz's account of what a criterial explanation is (see text for supra note 14) appears to impose fairly strict limits on how wrong the users of a concept can be in their use of that concept: see Dickson, Julie, 'Meth-




There is a further problem with the argument sketched above. That argument requires that the judges in Dworkin's sample cases took their use of the concept of law to be governed by the criteria generally accepted by their fellow judges. How- ever, the majority in Hill would have been well aware that it was not just the minority in that case who disagreed with them about how to interpret statutes, but a large number of other judges and lawyers as well. Similarly, in McLoughlin, each judge would have known that a significant number of other judges and lawyers (not just some of the other judges in that case) use different criteria for determining when a precedent can be distinguished. It is therefore unlikely that they took their use of the concept of law to be governed by criteria that are generally accepted by their fellow judges.

The discussion in this Section has focused on whether there are criteria for the application of the concept of law that are generally shared by judges and lawyers. It might be objected that the correct criteria for applying that concept are those that are generally accepted within the language community as a whole, and that criteria could be generally accepted within the language community as a whole even if lawyers and judges disagree about those criteria (since lawyers and judges represent only a small minority within the broader language community). To assess this objection, one would have to investigate whether there are criteria for the application of the concept of law that are generally believed (within the language community as a whole) to be the correct criteria (since Raz claims that the correct criteria are those that are generally believed to be correct). I cannot undertake that investigation here. However, if Dworkin has shown that there is widespread disagreement about the correct criteria within the subgroup of the language community that is most intimately concerned with the concept of law (namely, lawyers and judges), the onus is on Raz to show that this is unrepresentative of the wider language community.37 This is especially so as Raz states that: "The correct

37 One might regard legal philosophers, rather than lawyers and judges, as the subgroup most intimately concerned with the concept of law. How- ever, there also appears to be widespread disagreement within this subgroup about the correct criteria for applying the concept of law: see Part IV.



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criteria are those that people who think they understand the concept or term generally share ..." (TV 16-17, emphasis added). This appears to privilege the views of lawyers and judges, since they are more likely to regard themselves as understanding the concept of law than laypeople.

E. A Cumulative Approach

I have argued that, when considered separately, neither Raz's two purported refutations of the SSA nor his rejection of individualism provide the criterial approach with the resources it needs to be able to account for Dworkin's examples of theoretical disagreement. However, am I not being unfair to Raz by considering each of his arguments separately? Is it not sufficient if he can refute the weak version of the SSA when all three arguments are considered together?

It is doubtful, however, whether considering all three arguments together will enable Raz to refute the weak version. We have seen that the argument from interrelated concepts can account for only one type of theoretical disagreement (where disagreement about the content of a concept necessarily related to the concept of law leads to disagreement about the truth- conditions of propositions of law). It cannot account for other types of theoretical disagreement, including disagreements about whether (or how) other concepts are related to the concept of law. Moreover, while the non-individualistic picture and the argument from complexity can account for some theoretical disagreements on the basis that one or more parties to the dispute are mistaken, Raz cannot allow for widespread error regarding the criteria for the application of the concept of law, since he claims that the correct criteria are those that are generally believed to be correct. This suggests that, while Raz's arguments can account for some theoretical disagreements, it is unlikely that - even when considered together - they can account for the quantity and diversity of theoretical disagreement that Dworkin claims to exist. In particular, they will struggle to account for disputes like the one in McLoughlin, where the disagreement is widespread among lawyers and




judges, and is not of the type that can be explained by the argument from interrelated concepts.

IV. DO DWORKIN'S SAMPLE CASES CONCERN THE CONCEPT OF LAW?

Raz has, I believe, refuted the strong version of the SSA. He has shown that criterial explanations of the concept of law are compatible with some theoretical disagreement. However, I suggested that he also needs to refute the weak version of the SSA. To test whether he can do so, I considered whether he provides the resources needed to explain, in a way consistent with his criterial approach, the theoretical disagreements Dworkin discusses. I concluded that he does not.

There is, however, an important objection to this way of proceeding, which I shall label the "alternative objection" to the SSA. It begins by noting a distinction Raz draws later in his article, after he has purported to refute the SSA: "... a deter- mination of the content of the law of this legal system or that and the explanation of the concept of law are very different enterprises." (TV 27) A few pages later, he states: "When in the course of rendering judgment a court interprets the law, it does not interpret the concept of law." (TV 31) This suggests that Raz would regard the judges in Dworkin's sample cases as disagreeing about the content of the law in their legal system, not as disagreeing about the correct explanation of the concept of law. However, if the disagreements are not about the concept of law, then they are irrelevant to assessing Raz's criterialism, which is an account of the correct explanation of the concept of law (not an account of the content of the law in a particular legal system).

A similar objection has been offered by both Jules Coleman and Kenneth Himma.38 They argue that Dworkin confuses the criteria for the application of the concept of law with the

38 Coleman (2001, pp. 180-182); Himma, Kenneth Einar, 'Ambiguously Stung: Dworkin's Semantic Sting Reconfigured', Legal Theory 8 (2002): 145-183, at 160-162. See also Kramer, Matthew H., In Defense of Legal Positivism: Law without Trimmings (Oxford: Oxford University Press, 1999), ch 6.



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criteria of legal validity in a particular legal system (or that he implausibly ascribes this confusion to positivists). This might explain both why Dworkin ascribes criterialism to positivists (since positivists do claim that there are, in any particular legal system, criteria of legal validity shared among legal officials), and why he thinks that disagreements between judges in particular legal systems pose a problem for criterialism (since he equates those disagreements with disagreements about the criteria for the application of the concept of law).

The alternative objection is not actually part of Raz's response to the SSA. For present purposes, Raz's article can be divided into three parts. At TV 3-11, he discusses the relationship between philosophy of language and philosophy of law. At TV 1 1-27, he explains how the SSA is relevant to positivists' theories of law, before purporting to refute the SSA (in the ways discussed in Parts II & III above). TV 27-37 then addresses another of Dworkin's arguments - namely, that legal philosophy "... is the general part of adjudication, silent prologue to any decision at law." (LE 90) Raz's claim that, when deciding cases, courts interpret the law, not the concept of law, occurs in the third part of his article (at TV 31), as part of his argument that legal philosophy and adjudication are concerned with different matters. This is after he has purported to refute the SSA.

Admittedly, Raz distinguishes between determining the content of the law of a particular legal system and explaining the concept of law earlier in his article, before turning to Dworkin's claim about the relationship between legal philosophy and adjudication. However, he does so, not when responding to the SSA, but rather when responding to what he thinks is a second argument Dworkin deploys against criterial explanations of the concept of law, an argument Raz describes as "... altogether independent of the semantic sting." (TV 27)

Thus, the alternative objection is irrelevant to an assessment of Raz's actual response to the SSA.39 His actual response fails,

39 This represents an important difference between Raz's and the Coleman/Himma response to the SSA. Raz seems to agree with Coleman and Himma about the need to distinguish between criteria of legal validity and criteria for applying the concept of law. However, unlike Coleman and Himma, Raz does not rely on this distinction when responding to the SSA.




for the reasons given in Part III. Nevertheless, it would be a pyrrhic victory to refute Raz's actual response to the SSA, if his later discussion suggests an alternative objection that is successful. Indeed, there is a possible explanation of why Raz does not rely on the alternative objection when responding to the SSA. I suggested in Section III. A that he interprets Dworkin as defending the strong version of the SSA. I also suggested that Raz's arguments are sufficient to refute the strong version. Thus, he may not have felt the need to argue that Dworkin's sample cases do not concern the concept of law, since there is no need to consider those cases when refuting the strong version of the SSA.

The alternative objection represents a powerful assault upon the SSA. However, we should not prematurely conclude that it is fatal. It is not possible to provide a full assessment of that objection here, since the aim of the present article was to assess Raz's actual response to the SSA. Nevertheless, since I have argued that Raz's response is unsuccessful, and since Raz's later remarks indicate that he might be sympathetic to the alternative objection, let us briefly consider how Dworkin might respond to that objection. My aim in doing so is not to defend Dworkin against the alternative objection, but rather to provide a brief, preliminary exploration of some of the issues that might arise were Raz to pursue that objection.40

There are several ways in which Dworkin might respond to the alternative objection. For example, he might argue that, while the disputes in his sample cases were about the criteria of legal validity in a particular legal system, those disputes also amount to, entail or are indicative of disagreements about the concept of law.41 However, I shall briefly consider an alternative response, which is that - even if the disputes in Dworkin's sample cases are not about the concept of law - there are dis-

40 My concern is with the issues that might arise were Raz to pursue the

objection. These overlap with the issues that arise with regard to the Coleman/Himma version of the objection, but - since some of Raz's further commitments (e.g. to criterialism) are not shared by Coleman or Himma - the overlap is only partial.

41 This is the response suggested by Perry, Stephen, 'Method and Prin- ciple in Legal Theory' (book review), Yale Law Journal 111 (2002): 1757- 1813, at 1801-1802.



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putes between legal philosophers which clearly are disputes about the concept of law, and which criterialism cannot account for. Criterialism, therefore, should still be rejected as an account of the correct explanation of the concept of law. (This obviously represents a departure from Law* s Empire, and I will mention one implication of this below.)

For this strategy to succeed, Dworkin needs to show that some disputes between legal philosophers: (1) concern (the criteria for the application of) the concept of law; and (2) cannot be accounted for by criterial explanations of that concept. With regard to (1), his prospects for success appear good - jurisprudential disputes about the nature of law do seem to concern (the criteria for the application of) the concept of law. While there are some complications here,42 many of Dworkin's opponents appear willing to concede this point.43

What about (2)? Can criterial explanations of the concept of law account for these jurisprudential disputes? Here, things become much more controversial. Dworkin could argue that debate about the nature of law is sufficiently widespread (in the sense that enough legal philosophers adopt competing positions in that debate) to refute the claim that there are criteria for the application of the concept of law that are generally believed to be correct. For example, there is widespread disagreement about whether the criteria for applying the concept of law allow for moral criteria of legal validity. Perhaps it could be argued that positivism represents the generally accepted answer to questions of this sort, despite the embrace by some dissenters of natural law theory or Dworkinian interpretivism. But much work would need to be done to establish this, and to establish that the

42 For example, some people interpret Dworkin's own jurisprudential theory as applying only to Anglo-American legal systems, and so as not amounting to an account of the concept of law. Dworkin, however, denies that the application of his theory is limited in this way: Dworkin, Ronald, 'Hart's Postscript and the Character of Political Philosophy', Oxford Jour- nal of Legal Studies 24 (2004): 1-37, at 5 & 36.

For example, Raz views Hart's theory as an account of the criteria for applying the concept of law, and Hart's theory is, of course, contested. See also Himma (2002, p. 160) regarding the dispute between positivists and classical natural lawyers.




differences between positivists' theories (especially the differences between hard and soft positivism) do not undermine the claim that there is a generally accepted answer to questions of this sort.

Alternatively, Raz might argue that jurisprudential disputes about the nature of law can be accounted for using the argument from interrelated concepts. For example, he might argue that disagreements between hard positivists and their opponents are not really disagreements about the concept of law. Rather, both sides agree that the concept of law is closely connected to the concept of authority, but disagree about the content of the latter concept. Hard positivists argue that one cannot be subject to an authority if the putative authority requires one to consider one's pre-existing reasons for action to determine what is required of one; their opponents deny this. The argument from interrelated concepts shows that this disagreement about the concept of authority is consistent with there being shared criteria for the application of the concept of law, even if that disagreement leads to disagreement concerning the truth-conditions of propositions of law.

A full assessment of this argument may require considering whether the dispute over the concept of authority is only one facet of the debate between hard positivists and their opponents. If so, one would have to consider whether criterial explanations can also account for the other facets of that debate. It may also prove fruitful to consider whether the controversies surrounding hard positivism can fairly be characterized as disputes about the concept of authority as opposed to the concept of law. It could be argued that, in engaging in these debates, we seek a better understanding, not just of authority, but also of law (not just in the sense of being better able to determine what counts as law, but also in the sense of understanding what the concept of law is a concept of).44

44 I do not believe Raz would deny this. However, this would seem to put pressure on his claim about the relative independence of interrelated concepts. (Alternatively, it casts doubt on whether the concept of law is related to the concept of authority in the way needed for the argument from interrelated concepts to apply. The concepts of law and authority may be related in a way different from the way in which the concepts of just war and proportionality of harm are related.)



324 DALE SMITH

On the other hand, there may be costs for Dworkin in pursuing this response to the alternative objection. I shall briefly mention one possible cost. Positivists appear committed to there being general agreement among officials about the criteria of legal validity in the officials' legal system.45 They do not, however, appear committed to there being general agreement among legal philosophers about the criteria for applying the concept of law. Thus, Dworkin's claim that positivists are committed to criterialism may seem less plausible - some would say even less plausible - if criterialism is taken to task, not for being unable to account for certain kinds of judicial disagreement, but rather for being unable to account for certain types of jurisprudential dispute. This does not provide any comfort to Raz, who clearly endorses criterialism. But it may make it harder for Dworkin to show that the SSA stings other positivists, who claim not to endorse criterialism.

V. CONCLUSION

I have argued that Raz's actual response to the SSA is unsuccessful. I have also, in Part IV, considered an alternative objection he might offer, and briefly discussed how Dworkin might respond to that objection. In doing so, I have not sought to determine whether this alternative objection is successful, but only to indicate some of the issues it raises.

This clearly leaves much scope for further debate concerning the SSA. If Raz (or someone who shares Raz's theoretical commitments) wishes to pursue the alternative objection, then the issues canvassed in Part IV may need to be resolved. Moreover, Coleman and Himma offer a similar objection. There is clearly a need to resolve the issues that arise with regard to their version of the objection, and these issues may differ from those canvassed in Part IV, since their theoretical commitments differ from Raz's. (In particular, unlike Raz, neither Coleman nor Himma endorses criterialism.)

Other important objections have also been offered to the SSA. For example, it has been argued that - while Dworkin is

45 Though cf supra note 34.




right to suggest that criterial explanations of the meaning of the word "law", or of the concept of law, should be rejected - it does not follow that positivism should be re-construed as an interpretive theory. Rather, there are available to positivists alternative semantic theories, or approaches to conceptual explanation, that are neither criterial nor interpretive.46

These, however, are issues to be debated at another time. The aim of this article has been to determine whether one particular response to the SSA - namely, Raz's - is successful. I have argued that it is not. If I am right, we can rule out one rejoinder to the SSA, but it remains to be determined whether other responses are more successful.

ACKNOWLEDGEMENTS

I am grateful to Colin Campbell, Patrick Emerton and Jeff

Goldsworthy - as well as to the participants at the 2007 Conference of the Australian Society of Legal Philosophy, and to an anony- mous referee - for their very helpful comments.

Faculty of Law Monash University, Wellington Road, Clayton, VIC 3800, Australia E-mail: [email protected]

46 See, e.g. Coleman & Simchen (2003).



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Has Raz Drawn the Semantic Sting?

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