Argentina has a long tradition of excellent legal philosophers, including Carlos S. Nino, Carlos Alchourrón, and Eugenio Bulygin. Pablo Rapetti is part of a younger generation of Argentine legal philosophers that is continuing this rich tradition. This is one of his first scholarly works available in English.
In this paper, Rapetti confronts Ronald Dworkin’s Anti-Archimedeanism and its application to general jurisprudence. As Rapetti explains, Dworkin’s Anti-Archimedeanism is a rejection of the distinction between first-order normative language and second-order, neutral meta-languages we could use to explore the first-order language theoretically. In simple terms, it’s impossible to go “meta:” any debate about ethics, is a first-order moral debate. All metaethical theories occupy the same space as first-order moral theories.
Rapetti does a wonderful job setting out the (strong) Anti-Archimedean position in metaethics,1 as the conjunction of three claims: (i) ethical reasoning is autonomous and first-order ethical claims can only be justified by reference to other first-order moral claims; (ii) the aim of metaethical theories is vindicating or debunking first-order ethical thought on the basis of purely metaethical considerations; and (iii) every metaethical statement can be translated into a (or a series of) first-order ethical statement(s). The implication of Anti-Archimedeanism would be that there is no real distinction between first-order ethical claims (such as murder is wrong) and second-order metaethical claims (such as moral statements express non-cognitive attitudes).
Rapetti’s paper also offers reasons why we ought to reject Anti-Archimedeanism. As he argues, one particular problem is that Anti-Archimedeanism has no limiting principle (or, at least, no limiting principle proposed by Dworkin): it threatens to transform every philosophical problem into a first-order moral or ethical problem. If there’s no “meta” level above first-order ethical claims, then presumably there’s no neutral, “meta” level for any questions in practical philosophy. Moreover, since metaethics is partly about what there is, it is partly about metaphysics. Does this mean all philosophical problems are ultimately moral problems? Where is the limit? Moreover, as Rapetti persuasively argues, it is not the case that all metaethical statements can be translated into first-order ethical statements. We can have metaethical conversations—as philosophers who focus on metaethics commonly do—without any interest on resolving, or committing ourselves to answers to, first-order moral issues.
What does this have to do with law? The connection is straightforward because, for Dworkin, what’s true of ethics/metaethics is true of legal practice and jurisprudence. The idea that there’s a connection between metaethics and jurisprudence is not implausible. As Plunkett and Shapiro have argued recently, just like metaethics is a form of metanormative inquiry about ethics, general jurisprudence is a form of metanormative inquiry about law.2
Dworkin’s Anti-Archimedean position, in the case of law, is that there are no second-order conceptual theses in jurisprudence that cannot be translated into (and that do not ultimately aim to support or debunk) first-order legal judgments. There is no escape from the first-order domain—in ethics and in law. Indeed, and as Rapetti aptly argues, there is an almost perfect identity between Dworkin’s Anti-Archimedeanism in ethics and his views about first-order legal disputes and their implications against legal positivism. For Dworkin, just like metaethics dissolves into first-order ethics, general jurisprudence dissolves into first-order legal argument.
This is precisely where Dworkin’s well-known argument from theoretical disagreement comes in. Theoretical disagreements are disagreements about the content of the law that are not empirical (e.g., about whether the legislature enacted text X or whether agency Y enacted a regulation) or merely evaluative (e.g., about whether the law is good or bad from an evaluative standpoint). These theoretical disagreements are disagreements about the content of the law (i.e., disagreements about what the law is) that are not reducible to disagreement about empirical facts. But legal positivism, according to Dworkin, can only treat these disagreements as confused or hypocritical (after all, on at least a plausible interpretation, the aim of legal positivism is providing an explanation of legal phenomena in terms of social facts).3 And, as Dworkin argued, we seem to be surrounded by such fundamental legal disagreements, at least in the context of appellate litigation: disagreements that do not turn on disagreements about the facts that ground legal validity according to the rule of recognition or on purely evaluative considerations about what the law should be, but on discrepant normative views about what the law is. Legal positivism, in Dworkin’s view, cannot explain this aspect of legal argument at face value.
Hart’s internal point of view4 provides a positivist strategy that might seem to dissolve this concern. According to Hart, within legal systems, legal officials and other participants in social life treat legal rules (which, in his view, are exclusively grounded in social facts) as binding normative standards. That explains why, from the inside, legal discourse is normative even though, as a matter of metaphysics, it is ultimately grounded in social facts alone. We need to distinguish between the first-order level of internal legal statements and the second-order level of jurisprudence and its external statements.
Here’s the crux of the issue, according to Rapetti: Dworkin fails to pay enough attention to the distinction between these two types of statements, because of his Anti-Archimedeanism. The whole point of Hart’s distinction was to suggest that one could, as a theorist explaining legal phenomena, account for (explain, make sense of, understand, etc.) internal legal statements by judges and lawyers adopting an internal point of view and therefore for the fact that legal disputes are normative without being empirical or evaluative, without oneself adopting that point of view.
The Anti-Archimedean cannot accept Hart’s middle-ground, because, as Dworkin argues, there is no possibility for non-normative second-order discourse about first-order normative discourse. But these, as Rapetti argues, are handcuffs of Dworkin’s own making. The way out of the problem raised by theorical disagreements is a rejection of Anti-Archimedeanism. Without the latter, Dworkin’s objection to legal positivism on the basis of the former loses its force.
- Rapetti distinguishes between weak and strong Anti-Archimedeanism. Here, as he does in his own paper, I focus exclusively on the strong version.
- David Plunkett & Scott Shapiro, Law, Morality, and Everything Else: General Jurisprudence as a Branch of Metanormative Inquiry, 128 Ethics 37 (2017).
- It’s important to bear in mind that, as Rapetti himself argues, the aim of this explanatory strategy is not to suppress or eliminate the normative aspect of legal discourse, but rather to explain it. Pablo A. Rapetti, A Critique of Strong Anti-Archimedeanism: Metaethics, Conceptual Jurisprudence, and Legal Disagreements, 200 Synthese 111, 17 (2022).
- See generally H.L.A. Hart, The Concept of Law (1994).
