This volume consists of the first of the John Dewey Lectures delivered under the auspices of Columbia University's Philosophy Department as well as other essays by the author. Intended to clarify the meaning of the philosophical doctrines propounded by Professor Quine in 'Word and Objects', the essays included herein both support and expand those doctrines.

The purpose of this essay is to explore some of the main pragmatic aspects of communication within the legal context. It will be argued that in some crucial respects, the pragmatics of legal language is unique, involving considerations that are not typically present in ordinary conversational contexts. In particular, certain normative considerations that are typically settled in a regular conversational context are unresolved and potentially contentious in the legal case. On the other hand, the essay also argues that a careful (...) distinction between various pragmatic aspects of language use enables us to offer some generalizations about types of pragmatic enrichment that could be taken to form, or not to form, part of what is actually determined by legal expressions. (shrink)

By "theory" we mean a special project in literary criticism: the attempt to govern interpretations of particular texts by appealing to an account of interpretation in general. The term is sometimes applied to literary subjects with no direct bearing on the interpretation of individual works, such as narratology, stylistics, and prosody. Despite their generality, however, these subjects seem to us essentially empirical, and our argument against theory will not apply to them.Contemporary theory has taken two forms. Some theorists have sought (...) to ground the reading of literary texts in methods designed to guarantee the objectivity and validity of interpretations. Others, impressed by the inability of such procedures to produce agreement among interpreters, have translated that failure into an alternative mode of theory that denies the possibility of correct interpretation. Our aim here is not to choose between these two alternatives but rather to show that both rest on a single mistake, a mistake that is central to the notion of theory per se. The object of our critique is not a particular way of doing theory but the idea of doing theory at all.Theory attempts to solve—or to celebrate the impossibility of solving—a set of familiar problems: the function of authorial intention, the status of literary language, the role of interpretive assumptions, and so on. We will not attempt to solve these problems, nor will we be concerned with tracing their history or surveying the range of arguments they have stimulated. In our view, the mistake on which all critical theory rests has been to imagine that these problems are real. In fact, we will claim such problems only seem real--and theory itself only seems possible or relevant—when theorists fail to recognize the fundamental inseparability of the elements involved.The clearest example of the tendency to generate theoretical problems by splitting apart terms that are in fact inseparable is the persistent debate over the relation between authorial intention and the meaning texts. Some theorists have claimed that valid interpretations can only be obtained through an appeal to authorial intentions. This assumption is shared by theorists who, denying the possibility of recovering authorial intentions, also deny the possibility of valid interpretations. But once it is seen that the meaning of a text is simply identical to the author's intended meaning, the project of grounding meaning in intention becomes incoherent. Since the project itself is incoherent, it can neither succeed nor fail, hence both theoretical attitudes toward intention are irrelevant. The mistake made by theorists has been to imagine the possibility or desirability of moving from one term to a second term , when actually the two terms are the same. One can neither succeed nor fail in deriving one term from the other, since to have one is already to have them both.In the following two sections we will try to show in detail how theoretical accounts of intention always go wrong. In the fourth section we will undertake a similar analysis of an influential account of the role interpretive assumptions or beliefs play in the practice of literary criticism. The issues of belief and intention are, we think, central to the theoretical enterprise; our discussion of them is thus directed not only against specific theoretical arguments but against theory in general. Our examples are meant to represent the central mechanism of all theoretical arguments, and our treatment of them is meant to indicate that all such arguments will fail and fail in the same way. If we are right, then the whole enterprise of critical theory is misguided and should be abandoned. (shrink)

In this paper, I challenge an influential understanding of naturalization according to which work on traditional problems in the philosophy of law should be replaced with sociological or psychological explanations of how judges decide cases. W.V. Quine famously proposed the ‘naturalization of epistemology’. In a prominent series of papers and a book, Brian Leiter has raised the intriguing idea that Quine’s naturalization of epistemology is a useful model for philosophy of law. I examine Quine’s naturalization of epistemology and Leiter’s suggested (...) parallel and argue that the parallel does not hold up. Even granting Leiter’s substantive assumption that the law is indeterminate, there is no philosophical confusion or overreaching in the legal case that is parallel to the philosophical overreaching of Cartesian foundationalism in epistemology. Moreover, if we take seriously Leiter’s analogy, the upshot is almost the opposite of what Leiter suggests. The closest parallel in the legal case to Quine’s position would be the rejection of the philosophical positions that lead to the indeterminacy thesis. (shrink)

I offer a new argument against the legal positivist view that non-normative social facts can themselves determine the content of the law. I argue that the nature of the determination relation in law is rational determination: the contribution of law-determining practices to the content of the law must be based on reasons. That is why it must be possible in principle to explain what makes the law have the content that it does. It follows, I argue, that non-normative facts about (...) statutes, judicial decisions, and other practices cannot themselves determine the content of the law. A full account must appeal to considerations independent of the practices that determine the relevance of the practices to the content of the law. Normative facts are the best candidates. (shrink)

In this paper, I propose a new way of understanding the space of possibilities in the field of mental content. The resulting map assigns separate locations to theories of content that have generally been lumped together on the more traditional map. Conversely, it clusters together some theories of content that have typically been regarded as occupying opposite poles. I make my points concrete by developing a taxonomy of theories of mental content, but the main points of the paper concern not (...) merely how to classify, but how to understand, the theories. Also, though the paper takes theories of mental content as a case study, much of the discussion is applicable to theories of other phenomena. To a first approximation, the difference between the traditional and the proposed taxonomies turns on whether we classify theories of content by, on the one hand, their implications for a non-redundant supervenience base for content facts (i.e., for facts about what contents thoughts have) or, on the other, by their constitutive accounts of content. By a "constitutive account," I mean the kind of elucidation of the nature of a phenomenon that theorists have tried to give for, for example, knowledge, justice, personal identity, consciousness, convention, heat, and limit. The tendency to taxonomize by supervenience base is encouraged, I suggest, by a failure to keep clearly in view a distinction between constitutive and modal determination. Many philosophers would accept that a constitutive account cannot be captured in purely modal terms. Giving a constitutive account is not the same as specifying modally necessary and sufficient conditions. Nevertheless, philosophers often try to cash constitutive claims in modal terms. A case in point is that theories of content tend to be conceptualized in terms of the theories' implications for a supervenience base for content facts. My thesis goes beyond the by-now somewhat familiar proposition that not all modal determinants of a phenomenon are constitutive determinants. One who has taken that point on board might nevertheless conceive of a philosophical account as an attempt to specify constitutive determinants of the target phenomenon that make up a non-redundant supervenience base for the phenomenon. Shoehorning a philosophical account into this form leaves out elements that are modally redundant, but may be explanatorily or ontologically significant. For example, when a constitutive account has multiple levels, the different levels will typically be modally redundant. Formulating the account as a specification of a supervenience base of constitutive determinants will therefore flatten the account into a single level. Many of my arguments can be illustrated by considering the place of normativity in the theory of content. The new taxonomy gives a distinct niche to normative theories of content - theories that explain a thought's having a certain content at least in part in terms of the obtaining of normative facts. By contrast, on a traditional map, normative theories are invisible as such because normative facts supervene on non-normative ones. (shrink)

Shapiro has recently argued that Dworkin posed a new objection to legal positivism in Law's Empire, to which positivists, he says, have not adequately responded. Positivists, the objection goes, have no satisfactory account of what Dworkin calls “theoretical disagreement” about law, that is, disagreement about “the grounds of law” or what positivists would call the criteria of legal validity. I agree with Shapiro that the critique is new, and disagree that it has not been met. Positivism can not offer an (...) explanation that preserves the “face value” of theoretical disagreements, because the only intelligible dispute about the criteria of legal validity is an empirical or “head count” dispute, i.e., a dispute about what judges are doing, and how many of them are doing it. Positivism, however, has two other explanations for theoretical disagreement, which “explain away” rather than preserve the “face value” disagreement. According to positivists, either theoretical disagreements are disingenuous, in the sense that the parties, consciously or unconsciously, are really trying to change the law, that is, they are trying to say, as Dworkin puts it, “what it should be” not “what the law is”; or they are simply in error, that is, they honestly think there is a fact of the matter about what the grounds of law are, and thus what the law is, in the context of their disagreement, but they are mistaken, because, in truth, there is no fact of the matter about the grounds of law in this instance precisely because there is no convergent practice of behavior among officials constituting a Rule of Recognition on this point. The “Disingenuity” and “Error Theory” accounts of theoretical disagreement are explored, with attention to the theoretical desiderata at stake in choosing between competing explanatory theories. Particular attention is given to the best explanation for Riggs v. Palmer in light of the actual historical context of the decision and other opinions by the Riggs judges in contemporaneous cases. (shrink)

To be presented at an International Conference on Law, Language, and Interpretation, at the University of Akureyri, Akureyri, Iceland, April 1-2, 2007.