On How Law Is Not Like Chess – Dworkin and the Theory of Conceptual Types

Abstract

The present article aims to show how the contemporary legal philosophy became centred on a methodological debate and how Ronald Dworkin’s thinking holds a central position in this debate. Dworkin argues that law is an interpretive concept, ie., that it requires an interpretive attitude towards its object. Thereafter, the analogy between chess and law is misleading and inappropriate, precisely for its inability to capture the interpretive dimension of law. As an alternative, Dworkin offers a different analogy, with the interpretive practice of courtesy. With a few changes from how Dworkin presents it, the author describes an argument to help illustrate how interpretive activity for “interpretive concepts” takes place. The development of the interpretive theory of law, as formulated by Dworkin, leads to a refutation of countless conventionalist theories of meaning and introduces a theory of controversy. He understands that conventionalism and the semantic sting are two core elements of the methodological failure that legal positivism represents. Law is an argumentative practice, its meaning as a normative practice depends on the conditions of truth of the argumentative practices that constitute it. Hence. it is impossible to engage in such a practice with archimedean viewpoints external to the interpretation itself. External skepticism towards interpretation is unrealistic in face of the inevitability of the interpretive engagement. The interpretive practice is established through three stages of interpretation: the pre-interpretive, the interpretive and finally the post interpretive or reforming stage. All of them share the purpose of unveiling the meaning of the point of law’s interpretive practice. Dworkin answer his critics masterfully while incorporating central questions of contemporary philosophy in his theory and thereby, sets a paradigm for and illustrates the theoretical-philosophical problems that have been center-stage in recent years.