On how law is not like chess: Dworkin and the theory of conceptual types
| Autor | Ronaldo Porto Macedo Junior |
| Ocupação do Autor | Professor at Direito GV and USP |
| Páginas | 523-570 |
Special Workshop: Towards a Normative Jurisprudence? • 523
On how law is not like chess:
Dworkin and the theory of conceptual types
Ronaldo Porto Macedo Junior1
Abstract: The present article aims to show how the contemporary theoretical
legal debate became a methodological debate and how Ronald Dworkin’s think-
ing holds a central position in this debate. Dworkin arguments that law is an
interpretive concept, it requires the establishment of an interpretive aitude
towards its object. Thereafter, the analogy between chess and law is misleading
and inappropriate, precisely for its inability to capture the interpretive dimen-
sion of law. As an alternative, Dworkin oers a dierent analogy, with the in-
terpretive 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, it is impossible to engage in such a practice with ar-
chimedean viewpoints external to the interpretation itself. External skepticism
towards interpretation is unrealistic in face of the inevitability of the interpre-
tive engagement. The interpretive practice is established through three stages of
interpretation: the pre-interpretive, the interpretive and nally the post inter-
pretive or reforming stage. All of them with 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 by doing, sets a para-
digm for and illustrates the theoretical-philosophical problems that have been
center-stage in recent years.
Keywords: Dworkin, interpretive, courtesy.
1
Professor at Direito GV and USP.
524 • XXVI World Congress of Philosophy of Law and Social Philosophy
I. The contemporary methodological debate
It has become commonplace to acknowledge that the contempo-
rary agenda of debate on legal theory has taken on a markedly method-
ological nature in recent decades, particularly in the Anglo-Saxon legal
intellectual arena. Although this methodological trait fed by post-lin-
guistic turn philosophy of language was already present in the work by
H. L. A. Hart, I believe it gained new momentum and direction with the
publication of the studies of law philosopher Ronald Dworkin. Dwor-
kin radicalized and deepened some of these methodological topics and
took on a leading role in the creation of the legal theoretical agenda of
recent decades. The centrality of his work is due not only to its pioneer-
ing and the strength of his criticism, but also to the fact that it can be
seen as a response to almost every new viewpoint and to many of the
methodological subjects that have gained preeminence, even though it
is not limited to this. In this sense, Dworkin’s work not only makes a
signicant contribution to the construction of today’s legal-theoretical
agenda and casts the author as one of the most original thinkers therein,
but also sets a paradigm for and illustrates the theoretical-philosophical
problems that have been center-stage in recent years.
The Dworkian argument that law is an interpretive concept
amounts to one of the great and innovative contributions the American
philosopher has introduced into the legal-methodological. The view of
interpretation he develops, however, is not to be confused with the her-
meneutical approach of Max Weber and Herbert Hart.
One of the hermeneutical approach’s distinctive traits is the im-
portance it assigns to the issue of the meaning of action. Weber, for ex-
ample, analyzes this issue by using chess as a preferred illustration. In
fact, the analogy between law and chess has fascinated many legal theo-
rists, and methodological positivists in particular. Despite the similari-
ties between Weber’s analysis and Hart’s criticism of his predecessors,
there are some dierences between them that justify the comparison
made in this paper. They concern how both dene the meanings of the
internal and external meaning of rules-regulated action and of intentionality.
The Hartian theory of law is seated on an innovative analysis of the con-
cept of rule and provides new methodological fundamentals for legal
positivism. Notwithstanding, it retains from classic positivism a com-
mitment to some of its basic arguments, particularly in concern with the
thesis of the separability of law and morality, and with the descriptive
Special Workshop: Towards a Normative Jurisprudence? • 525
nature of the theory of law. Ronald Dworkin harshly criticizes Hart’s
methodological compromise.
Several dimensions of the methodological debate Dworkin’s
work caused are dispersed across the various stages of the famed Hart–
Dworkin debate, which has occupied countless legal theorists in recent
decades. I believe that the central themes of the debate are still poorly
understood. I believe that the debate established by theses authors, as
well as its connection with the contemporary legal theoretical agenda
is central for understanding the classic questions concerning the con-
nection between law and morals, the descriptive or normative nature of
legal theory and the role of intentionality in interpretative practices of
interpretive concepts. Dworkin argues that the analogy between chess
and law is misleading and inappropriate, precisely for its inability to
capture the interpretive dimension of law. For this reason, he proposes
the social practice of courtesy as a beer model for understanding law.
This shift, which I refer to as “From chess to courtesy,” lies seated on
a deep conceptual and methodological change that separates Dworkin
from Hart and many of his predecessors.
Ronald Dworkin builds an interpretive theory of law. To this end,
he deepens a conception of interpretation other than Hart’s hermeneuti-
cal understanding, although the laer may be seen as a starting point
for the former. The distinctive trait of the Dworkian concept of inter-
pretation is how, on analyzing interpretive practices such as “courtesy”,
the theorist poses new and mighty challenges for his contemporaries.
For Dworkin, interpretation as a creative and reconstructive endeavor,
rather than “conversational” interpretation, or one intended to merely
identify the agents’ subjective intent, is the best means to understanding
the nature of law.
For Dworkin, the correct understanding of grammar in our use
of the conceptual language is a vital endeavor to both prevent philo-
sophical misunderstandings and to view the genealogy of such misun-
derstandings. On the other hand, the distinctions are relevant in practice
insofar as they aect how we practice law – in particular, how we inter-
pret it in our everyday practices.
II. Dworkin and the theory of interpretation
A main cause of philosophical disease - a one-sided diet: one nour-
ishes one’s thinking with only one kind of example. (Ludwig Wi-
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