The Subject Matter of “Subject Matter” and General Jurisprudence

Abstract

Abstract A number of prominent legal theorists are committed or open to the following thesis (MD): (1) Dworkinian non-positivist and Hartian positivist legal theories traffic in shared legal terms, but they do not thereby address a shared subject matter; (2) Hartian and Dworkinian theorists disagree about how they ought to use legal terms. This chapter enlists a variant of neopragmatic theory, pragmatic inferentialism, in service of two main objectives. First, it defends the following metasemantic non-positivist thesis: in crucial contexts, the subject matter of an expression is determined by how speakers ought to use the expression. Second, the chapter argues that MD is false, for it speaks to a metasemantic non-positivist context and, yet, it presupposes the truth of metasemantic positivism. In this same vein, the chapter defends an alternative to MD’s characterization of the framing and stakes of the debate between Hartian and Dworkininan legal theorists.