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Interpretivism in Jurisprudence: What Difference Does the Philosophy of History Make to the Philosophy of Law?

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To answer the question of what difference the philosophy of history makes to the philosophy of law this paper begins by calling attention to the way that Ronald Dworkin's interpretive theory of law is supposed to upend legal positivism. My analysis shows how divergent theories about what law and the basis of legal authority is are supported by divergent points of view about what concepts are, how they operate within social practices, and how we might best give account of such meanings. Such issues are widely debated in the philosophy of history but are often overlooked in jurisprudential circles. When the legal positivist approach to meanings is contrasted with Dworkin's interpretivism it is clear that what is needed is an alternative to both, in the form of what we might call "historical meanings" and "historical interpretation". While Dworkin's interpretivism gets it right that legal positivism is an inadequate philosophy of law to the extent that it is committed to a "criterial semantics" view of concepts, this paper argues that post-positivism in the philosophy of law need not entail a normative jurisprudence, as Dworkin would have it.

Affiliations: 1: Department of Political Science, University of California, Berkeley, USA

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