If Archimedes had had a point to stand on outside the world, he would have been able not only to lift up our sphere, as he boasted that he could do, but to make it fall back again into the abyss, like a cracked shell.
Marguerite Yourcenar-The Abyss
Abstract
This paper is divided into two parts. In the first one I distinguish between weak and strong Anti-Archimedeanisms, the latter being the view that metaethics, just as any other discipline attempting to work out a second-order conceptual, metaphysical (semantic, etc.) non-committed discourse about the first-order discourse composing normative practices, is conceptually impossible or otherwise incoherent. I deal in particular with Ronald Dworkin’s famous exposition of the view. I argue that strong Anti-Archimedeanism constitutes an untenable philosophical stance, therefore making logical space for the practice of a discipline such as metaethics—conceived as ethically neutral. This makes space, concurrently, for neutral conceptual jurisprudence. In the second part of the article, I attempt to show two things. On the one hand, that Dworkin’s widely discussed ‘challenge of disagreements’ to legal positivism (the latter being precisely an instantiation of conceptual jurisprudence) is founded upon strong Anti-Archimedeanism. On the other hand, that having rejected strong Anti-Archimedeanism we should consequently reject the challenge as a serious challenge to positivism. This move, of course, does not thereby imply that accounting for legal disagreements is not an important jurisprudential task. But it marks—contra Dworkin—that there is no principled or a priori impossibility of doing so within a positivist framework.
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Notes
Ethics understood here as first-order moral reasoning and discourse; metaethics understood as a second-order reasoning and discourse concerned with the metaphysical, conceptual, semantic, epistemological, and psychological questions underlying ethics. Crucially, this understanding of metaethics—rejected by Dworkin—takes it to be normatively neutral (i.e., non-committed), or at the very least morally neutral. These characterisations are standard across the literature. See, e.g., Schroeder (2008, p. 8). Now, it is important to notice that, among these, it is also standard to regard the metaphysical, semantic, and conceptual questions as the core of the metaethical enterprise. Dworkin’s (strong) Anti-Archimedeanism may be a position which allows for a non-committed approach to the other metaethical questions, but it certainly does not for these core questions. Finally, it is important to note that I am employing a rather narrow understanding of metaethics, following a prior narrow understanding of ethics, for the sake of more sharply circumscribing my discussion: many would like to distinguish morality as a subset of the broader domain of ethics, and I take that distinction to be indeed valuable for purposes different from the main one pursued in this paper. (I will even use a version of the distinction, however, for some details of the subsequent discussion—employing the terms ‘morality’ and ‘the normative’ in a broader sense.) See, e.g., Darwall (2017).
The labels for these first two theses come from Toh (2013, pp. 463–464). However, the way in which I characterise this second one departs from the characterisation offered by Toh himself, who only states: ‘…Dworkin conceives all metaethical theories, which he tellingly calls ‘Archimedean’ theories, as having the ambition of either vindicating or debunking wholesale our first-order ethical thinking based only on strictly second-order—i.e. metaphysical, conceptual, psychological, etc.—considerations.’ (p. 463). The way in which I advance this idea in the text is an interpretation of that sole and rather opaque formulation. Cristina Redondo has pointed out to me that other possible interpretations could be, for example, that Dworkin might be claiming the following: (1) That a metaethical theory seeks to vindicate or debunk each and every of the theses composing a first-order comprehensive position (and perhaps even the logical consequences following from them). Or (2) that a metaethical theory seeks to reject such a kind of position in a ‘radical’ way—that is, by refuting all of the arguments offered in favour of it and all those which could be offered. I think (so does Redondo) that both interpretations would misrepresent Dworkin’s attack on metaethics.
This conception of general jurisprudence (which in this paper I call ‘conceptual jurisprudence’) defines legal positivism as a metalegal theory. Otherwise put: it constitutes the methodological tenet of legal positivism. It is thus paradigmatically exemplified in the works by some of the most important legal philosophers of our age, such as Hans Kelsen (see his 1967, p. 59) and, of course, Dworkin’s main antagonist: H.L.A. Hart. The conceptual inquiry, in a strict sense, is only a part of the more general philosophical programme which—still in parallel to metaethics—includes further research related to the law in fields such as metaphysics, the philosophy of mind, epistemology, etc. See Plunkett and Shapiro (2017). In any case, throughout this paper I will use the term ‘conceptual’ in a wide sense, including metaphysical and semantic concerns as well, and always implying normative neutrality.
I am not saying Dworkin’s claim is about the actual intentions of metaethicists. His is a suggestion about what they actually do, maybe without even realising it.
Or perhaps my knowing thereof. We may avoid entering this issue here.
For a sample somewhat on this vein, see Tiefensee (2014, sect. 4.1).
One may try to go even further and hold that the decidability of such a metaethical claim would be a function of objective rationality—assuming there are indeed objective standards for rationality. Therefore, the matter would be independent of what the addressed agent comes to think and accept. This further option needs the additional (plausible) assumption that the objective standards for rationality are not ethical in nature, but it is compatible with both the conception of (a part of) rationality as purely theoretical (implying non-practical/normative) and with the alternative conception of rationality in totum as practical/normative but in a sense broader than (and prior to) the morally-normative one. See Wallace (2018, §1). I only state the weaker option in the main text because it is both less demanding and, more importantly, already enough to account for the conceptual character of the metaethical claim discussed. Notice also that the first understanding can be followed by the ‘rationality question’ in which the second understanding consists, though the former in no way necessitates the latter.
Dworkin is criticised in a similar way in Ehrenberg (2008, pp. 527–528).
Note that this argument works by somehow turning upside down one of Dworkin’s own arguments against (sceptic) Archimedeanism about morality in, e.g., Dworkin (2011, p. 41).
It might be thought that my debate with the kind of rejection of metaethics that Dworkin poses (i) takes place at a meta-metaethical level, and so (ii) that that would give him a way out of the dilemma, by taking the path of this first horn yet finally circumventing its unwanted consequence. Whilst (i) is true if my discussion is correct; (ii) is not, since Dworkin’s view is that one cannot ‘go meta’ when it comes to the conceptual analysis of ethical thought and talk—if there is no possible metaethics, a fortiori there is no possible meta-meta(-meta…)ethics.
This very conclusion, I believe, applies to the defence of strong Anti-Archimedeanism offered in Clipsham (2013), based on what he terms a ‘broader theory of moral content.’
Which is of course very different from saying that they are (ultimately) normative in a more basic and primary sense than the specifically moral. I think it would be easier to intuitively make sense of the basic version than to make sense of the moral version, were we to compare both alternatives.
Star (2010, p. 499, n. 9) also acknowledges the possibility of ambiguity, and even exemplifies it, but concludes the same I do.
This last reply may be understood as wielding the distinction between semantics and pragmatics against the Dworkinean objector relying on the distinction between the semantic and the epistemic. I believe it also works against at least some of the arguments advanced in Schroeder (2017) to show that some metaethical views entail ethical commitments. I do not disagree with his every claim there, but I would say not that some metaethical views entail ethical commitments, but rather that some issues classically taken to be metaethical are actually ethical in nature. Or, in other words, that the scope of metaethics is narrower than what many have thought.
I believe the following argument is particularly well-suited to work as a reply to Mark Hanin’s defence of Anti-Archimedeanism, to the extent that it can be construed as a defence of strong Anti-Archimedeanism (I have in mind the first part of his article, but not his particular challenge to error-theoretical metaethics). See Hanin (2013).
See Martí and Seleme (2016) for the suggestion that the character of a conversation such as this one depends on the presuppositions underlying the speakers’ statements.
This is independent of the question of who (if anyone) is right about these issues on the metaethical discussion.
This is falling into the first horn of the dilemma posed in the previous section.
For a compilation of essays both for and against the principle, see Pigden (2010).
See, e.g., McPherson and Plunkett (2017, pp. 20 ff.), Kremm and Schafer (2017) and Maguire (2017). A particularly interesting challenge is that of Berker (2018), who takes an approach somehow opposite to Dworkin’s. He submits that grounding claims are all of one and the same nature. So, normative claims—which can be taken to be claims about the ‘normative grounding’ of certain facts, stances, other claims (etc.)—are no different from, e.g., ‘metaphysical grounding’ claims. He concludes that, in a way, ethics collapses into metaethics—more precisely, that there is no metaethically-free ethical inquiry. For a reply, see Litland (2018). See also Rodríguez-Blanco (2001).
Recall that even if the final option available to the Dworkinean that was surmised at the end of the last section were ultimately feasible, it would have the result of disallowing the conceptual space for metaethics only at the cost of actually allowing instead for a second-order and non-normative conceptual endeavour devoted to the examination of first-order legal language.
To avoid unwanted repetitions, I will sometimes call them ‘legal propositions.’
On the notion of common ground, see Stalnaker (2002).
Standard philosophical usages of the term ‘consistency’ relate it mostly to the logical (and not the empirical) domain. It would perhaps be better to talk of ‘correspondence’ instead, but nothing too important hangs on this linguistic issue, so I will stick to ‘consistency.’
From now on I will avoid the expression ‘theoretical disagreements,’ as a matter of linguistic choice.
Notice that this is not only a premise in Dworkin’s own positive explication of fundamental legal disagreements, but a demand already built into his very challenge to legal positivism. It is legitimate to complain that this rigs the game before it begins, since it burdens positivism with a correction criterion to satisfy the challenge which positivism may have good reasons to eschew. But I will not do that here. For one, because I share Dworkin’s intuition about the face-value of first-order legal language. But, more importantly, because if my main argument in this second half of the paper is sound, then legal positivism can deflect Dworkin’s challenge even when conceding that any serious or plausible account of fundamental legal disagreements should honour and make sense of the normative face-value of first-order legal language. Nonetheless, I am anyway open—whereas Dworkin is not—to the possibility that in the end the best explanation of legal disagreements might be one which concludes, as a considered judgment, that in the context of the relevant disagreements the face-value of first-order legal language should be discarded. My view is that (the effort of) making sense of said face-value is indeed a correction criterion (among others), but not necessarily a ‘deal-breaker.’
Putting the examples aside, it should be noted that both statement-types are potentially ambiguous. Therefore, each of them may be interpreted, perhaps depending on the context, as either internal or external. See Bulygin (2015, pp. 138–141).
At least in part, and at least regarding the paradigmatic case of a legal participant.
I would go on and say that for Hart every participant is an accepter, at least if we distinguish between the mere passive role of being subjected to legal norms and the active role of offering and requiring (legal) justifications for actions in terms of legal norms—the participant in her ‘active mode’ is always an accepter. But this may perhaps raise some controversy. That is why, to avoid a presently unnecessary engagement with that issue, I include the ‘at least’ provisos in the main text (and in the previous footnote).
The formulation of expressivism that Toh deals with the most comes from Gibbard (1990). See also Gibbard (2003, 2012). For another well-known and akin version of contemporary metaethical expressivism (which has been already touched upon in the first part of this article), see Blackburn (1993, 1998).
I am generally sympathetic to Toh’s work, both in its construal of Hart’s analysis in expressivist terms and in its sketch of a more positive response to Dworkin’s challenge. I have, however, several objections to it that I cannot consider here. But in the following section I will focus on an issue crucial to this paper in which I part ways with him: the diagnosis of Dworkin’s misrepresentation of the distinction between ILS and ELS. Incidentally, it is debatable how much does Toh himself still hang on to the expressivist framework and positive response, in light of his more recent work: see Schroeter et al. (2020).
This is a slightly amended version of the latest reconstruction by Toh that I am aware of: (2015, p. 360). In previous papers, his reconstruction was somewhat different and, he claims now, less faithful to Hart’s view. See, e.g., Toh (2005, p. 88, 2011, pp. 116–117). However, there is at least one problem with it that I should point out here. Toh thinks that ILS about the (content of) the rule of recognition can certainly be made. In fact, a legal disagreement is fundamental when it is about said rule, and it consists in the opposition of a special class of ILS Toh calls ‘internal recognitional statements’ (see Toh 2008, pp. 479–480). I agree with all of this. Yet it follows that the biconditional clause in the scheme above is too restrictive. Were he to deny that internal recognitional statements are a species of the genre ILS, he would thus be renouncing to their legal character and consequently granting Dworkin his point: for a positivist there cannot be legal disagreements about the rule of recognition. My view is that recognitional statements are indeed a subclass of internal legal statements, but arguing for that and exploring the consequences of such a move would lead us far beyond the scope of this paper.
See the parallel in Gibbard (1990, pp. 74–75).
I am aware that my reading of Hart on this point, equating acceptance to the disposition of using norms as evaluative standards, and analytically separating it from further dispositions regarding praise and criticism, is non-standard and potentially controversial. The distinction, and the non-reductive explanation of the latter in terms of the—more fundamental—former (which is something that I am inclined to as well), are not normally explored. See, e.g., Kramer (2018, pp. 46–47, 61–62) for an example of the standard unifying reading. Dealing with this topic in detail goes beyond the scope of this paper.
This is arguably what distinguishes metaethical expressivism from metaethical subjectivism, since the latter is commonly taken to portray normative statements as descriptions, made by the utterer, of her own mental states.
Toh emphasises that we should read Hart as employing a pragmatic—and not a semantic—notion of presupposition. Following Stalnaker (1973, p. 451), we may say that a presupposition is of a semantic character when it makes for the meaning of the statement which includes it. According to this conception there is a semantic relation between the statement and what is presupposed (i.e., the latter is another statement presupposed in the proffered one). Semantic presuppositions are in some sense a part of the sentences and statements presupposing them. On this line of thought, a statement presupposes another just in case the latter need be true in order for the former to have a truth-value at all. (Classically advancing a semantic understanding of presuppositions: Strawson 1950. See also Black (1954, pp. 24 ff.)) Therefore, a speaker who is wrong about something semantically (and of a factual character) presupposed by a statement of hers is consequently proffering a defective statement, since it would lack a truth-value (Stalnaker 1973, pp. 451–452). And the speaker would thereby have a reason to take her statement back.
However, factual-presuppositional error does not irremissibly lead to the need of taking back when the presupposition is conceived of as pragmatic. On this alternative understanding, the presupposition is not a relation between statements, but a relation between a statement and certain facts about the speaker—beliefs, intentions, expectations (Stalnaker 1973, p. 447). In general, we may say that presuppositions in this sense are what the speaker takes as a background of knowledge shared with her audience. (Originally, Stalnaker went on to consider presuppositions thus understood as a type of propositional attitude. This might have changed in his work as time went by, for he moved on to claim that presupposing is not a mental attitude such as believing, but more of a ‘linguistic disposition’: a disposition to behave in the use of language as if one had certain beliefs or were acting under certain assumptions—see Stalnaker (1999, p. 52). The core of his ideas as just presented remains nonetheless the same. For a more recent characterisation of presuppositions that in a way begins by discussing Stalnaker’s latest picture—and sharing it to some extent—, see Yablo(2014, ch. 10).
The pragmatic notion seems more suitable for understanding Hart’s analysis of ILS. For he claims that, although the truth of the factual presupposition about the efficacy of the rule of recognition makes for the ‘normality’ of ILS, it is still possible to proffer successful, felicitous ILS even when the presupposition is false—moreover: even when the speaker already knows it is false (Hart 1983, p. 168, 1982, pp. 103–104). This in turn helps support the expressivist character of the ILS analysis, in so far as it stresses the principality of the normative aspect of ILS and the relatively incidental character of what is factually presupposed in their formulations.
Below (n. 56) I will call attention to other advantages offered by the expressivist interpretation with regard to the subject-matter of this article.
See Toh (2005, pp. 77 and 110). Toh also attributes Dworkin’s view of the distinction to many legal positivists after Hart. But that does not change the fact that the view is left underexplained.
See also Dworkin (2006: Introduction) regarding his notion of a sociological concept of law.
Because that would mean that the jurisprudent’s statements comprise a conceptual reconstruction of first-order legal language that includes the use of notions the analysis of which, concluding they are normative notions, necessarily had to be itself normative (whether it dealt with their conceptual content, and/or with the semantics of the terms that vehicle them, and/or with the metaphysics underlying them).
Which at face-value are (or at least seem) normative.
In fact, Hartian positivism is not exactly Archimedean, but a version of weak Anti-Archimedeanism, since Hart (and many other positivists) endorse the autonomy of ethics thesis—i.e., Hume’s principle. In Dworkin’s view that is still wrong, for it is too little.
So, those (external) statements by the observer would end up in a portrayal of the statements distinctively formulated by the participants.
Hart also distinguished a third subtype, composed of those statements that register behavioural regularities whilst adding that converging in those regularities is regarded by the relevant agents as ‘correct behaviour.’ Call them ‘less radical ELS.’ For my present purposes, less radical ELS and radical ELS are relevantly analogous in their difference with moderate ELS, so I will use the expression ‘radical ELS’ as encompassing less radical ELS as well.
Because it deals with the content of legal-normative concepts, and/or with the semantics of the terms which vehicle them, and/or with the ‘metaphysics underlying them’ (I use the inverted commas here because Dworkin himself would do so).
Alternatively, it may be a discipline external to the law and able to depict certain statements proffered by participants of the legal practice as normative in character, though only because those statements are not taken to be legal proper, but only moral.
And he has on occasion done so indeed. That is why he sometimes takes legal positivism to be underhandedly normative, in spite of the latter’s explicit claims to the contrary. For example, when he talks (2006, pp. 188 ff.) of the inclusive variant of legal positivism as a covert version of anti-positivism. This does not apply to Dworkin’s version of ‘positivism as conventionalism,’ though, because he explicitly acknowledges that such a theory is not a reinterpretation of positivism, but more of a re-creation of it for dialectical purposes. See Dworkin (1986, ch. 4).
Interestingly, Brian Leiter, a well-known advocate of a realist version of legal positivism, has offered a detailed account of fundamental legal disagreements that explains them in the two alternative ways previously surmised by Dworkin—i.e., as either confronted ELS, or as confronted internal statements that are moral or political, but not legal. See Leiter (2009, 2019). I think his proposal is flawed, but here I must limit myself to advance only two hints on this connection, relative to two alternative interpretations of his work: (1) Leiter might indeed be attributing to disagreeing legal parties the opposition of ELS instead of ILS, therefore buying Dworkin’s picture of legal positivism somehow. As long as there are more plausible ways of explaining fundamental disagreements which do not dismiss their discursive face-value, and so depict them as normative, they are preferable other-things-being-equal. And I think there are. (2) Leiter might be standing on a very basic philosophical stance which is the exact opposite of Dworkin’s but that I think is, although for different reasons, equally implausible: perhaps he rejects not only strong Anti-Archimedeanism, but weak Anti-Archimedeanism as well. Put differently: perhaps he endorses a fully (or strong) Archimedean stance. Which is what, if correct, would enable him to assert from an external, theoretical perspective that disagreeing parties do in fact advance ILS (i.e., normative claims) and, at the same time, that those ILS are either wrong (false, incorrect) or hypocritically moral in nature. I believe I have said enough in the main text to see the problems with (1)—which, by the way, is the interpretation best supported by textual evidence. As with (2), the problem is its breaching of Hume’s principle. I have more thoroughly scrutinised Leiter’s view in Rapetti (2019, pp. 120–144).
Some readers may have qualms regarding my use of the expressivist construal of Hart’s distinction in this article, as it is certainly non-standard. I hope such qualms may by now have completely dissipated. First, such construal allows for opposing Dworkin’s challenge ‘in his own field,’ as it fully embraces a basic intuition he insists on and that is indeed very plausible: that the kinds of legal disagreements he calls attention to are normative in nature. A different construal should either reject (explain away) or qualify that plausible initial intuition. Second, playing thus in Dworkin’s own field allows us to better grasp both the fundamental importance the strong Anti-Archimedean underlying stance has for his challenge to positivism, and the way in which we can deflate the latter by confronting the former. See n. 32 above.
For other explanations of legal disagreements offered from within the positivistic framework see, e.g., Arena, (2019, ch. 5), Carrió (2006, ch. 3), Dei Vecchi (2019), Kristan and Pravato (2022), Kristan and Vignolo (2018), Poscher et al. (2016), Ramírez Ludeña (2016), Rapetti (2019), Ratti (2008), and the works collected in Luque and Ratti (2012).
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Acknowledgements
I presented this paper in sessions of the Oxford Jurisprudence Discussion Group (2019), the I Encuentro ‘gironí’ de filosofía del derecho (2019), the IVR World Congress in Lucerne (2019), the Lisbon Legal Theory Group (2019), the Tequila Seminar in Mexico City (2019), the Discutiendo con Dworkin online seminar series that I co-organised with Juan Iosa (2021), and the Analytic Philosophy Meets Legal Theory congress held in Krakow (2021). I thank the audiences in all of those events for the helpful feedback. I especially thank those who have offered me written comments on previous versions of the manuscript: Sebastián Agüero, Federico Arena, Andrés Bouzat, Pedro Caballero, Jorge Cerdio, Alejandro Chehtman, Diego Dei Vecchi, Kenneth Ehrenberg, Jordi Ferrer, Sebastián Figueroa, Bernardo Gallegos, Riccardo Guastini, Andrej Kristan, Pau Luque, José Juan Moreso, Pablo Navarro, Diego Papayannis, Cristina Redondo, Jorge Rodríguez, Miguel Ángel Sebastián, David Sierra, Germán Sucar and Guilherme Vasconcelos. Finally, many thanks to two anonymous reviewers provided by Synthese. Their insightful comments and suggestions led me to greatly improve the article. All remaining flaws are on my count. I dedicate this paper to the memory of Aurelio M. Bija.
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Rapetti, P.A. A critique of strong Anti-Archimedeanism: metaethics, conceptual jurisprudence, and legal disagreements. Synthese 200, 111 (2022). https://doi.org/10.1007/s11229-022-03624-y
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DOI: https://doi.org/10.1007/s11229-022-03624-y