Legal Disagreements and Theories of Reference [chapter]

Genoveva Martí, Lorena Ramírez-Ludeña
2016 Pragmatics and Law  
According to Hartian positivists, law is a conventional practice that requires a convergence that includes not only the regularity of behavior but also of certain beliefs and attitudes. It is easy to conclude that in this framework the meaning of terms is determined by shared criteria that are transparent to all parties, a form of semantic descriptivism. This, at least, is the way in which Dworkin and his followers have interpreted Hart's positivist stance. The problem is that disagreements
more » ... n arise on how to interpret the words of the law, and this fact seems to conflict with the emphasis of positivism on the idea of agreement, or so it is argued. If the meaning of legal terms depends on shared criteria, why do individuals disagree? And if they disagree, what does their disagreement consist in? 2 We use the word "conventional" in a more flexible way than Lewis (1969) and the authors that discuss him. Regarding the conventional nature of law, see (Marmor 2009) and (Vilajosana 2010). 3 There is an important difference, often missed, between interpretive disagreements, disagreements about the concept of law and disagreements about the sources of the law, among others. Here we will analyze only interpretive disagreements, that is, disagreements about the content of the law. 4 Descriptivism finds its inspiration in the semantic theories of Gottlob Frege and Bertrand Russell. Russell (1910-1911 and other works) explicitly defended that referential terms such as proper names are abbreviations of definite descriptions. Frege's commitment to descriptivism is debatable. According to Frege (1892) what determines the reference of expressions is a sense, conceptual
doi:10.1007/978-3-319-30385-7_6 fatcat:5fkr6ednorhfjiyebi6jhx2xlm