In a circulated but heretofore unpublished 2001 paper, I argued that Leiter’s analogy to Quine’s “naturalization of epistemology” does not do the philosophical work Leiter suggests. I revisit the issues in this new essay. I first show that Leiter’s replies to my arguments fail. Most significantly, if – contrary to the genuinely naturalistic reading of Quine that I advanced – Quine is understood as claiming that we have no vantage point from which to address whether belief in scientific theories is (...) ever justified, it would not help Leiter’s parallel. Given Leiter’s way of drawing the parallel, the analogous position in the legal case would be not the Legal Realists’ indeterminacy thesis, but the very different position that we have no vantage point from which to address whether legal decisions can ever be justified. I then go on to address the more important question of whether the indeterminacy thesis, if true, would support any replacement of important legal philosophical questions with empirical ones. Although Ronald Dworkin has argued against the indeterminacy thesis, if he were wrong on this issue, it would not in any way suggest that the questions with which Dworkin is centrally concerned cannot fruitfully be addressed. The indeterminacy thesis is a bone of contention in an ordinary philosophical debate between its proponents and Dworkin. Of course, if the determinacy thesis were true, no one should try to show that it is false, but this triviality lends no support to the kind of replacement proposal that Leiter proposes. I conclude with some general reflections on naturalism and philosophical methodology. (shrink)

One of Ronald Dworkin's most distinctive claims in legal philosophy is that law is an interpretative concept, a special kind of concept whose correct application depends neither on fixed criteria nor on an instance-identifying decision procedure but rather on the normative or evaluative facts that best justify the total set of practices in which that concept is used. The main argument that Dworkin gives for interpretivism about some conceptis a disagreement-based argument. We argue here that Dworkin's disagreement-based argument relies on (...) a mistaken premise about the nature of disagreement. We propose an alternative analysis of the type of disputeseeming variation casesthat Dworkin uses to motivate the idea of interpretative concepts. We begin by observing that genuine disagreements can be expressed via a range of linguistic mechanisms, many of which do not require that speakers literally assert and deny one and the same proposition. We focus in particular on what we call disputes in which speakers do not express the same concepts by their words but rather negotiate how words should be used and thereby negotiate which of a range of competing concepts should be used in that context. We claim that this view has quite general theoretical advantages over Dworkin's interpretivism about seeming variation cases and about the relevant class of legal disputes in particular. This paper thus has two interlocking goals: (1) to undermine one of Dworkin's core arguments for interpretivism, and (2) to provide the foundations for a noninterpretivist alternative account of an important class of legal disputes. (shrink)