Can I Have a Theoretical Disagreement with Heidegger

Lee Goldsmith

My aim in this paper is to present a challenge to Heidegger’s theory of interpretation in

order to generate some productive research into it. According to Heidegger, every case of

understanding is a case of interpretation. Interpretation is not just a mode of understanding a text

but also daily chores, physical processes, and ourselves. Call this the hermeneutic model of the

understanding. Like any theory there are certain desiderata that the hermeneutic model seeks to

satisfy. One of them is that the model should show how we can learn from the object of

interpretation. In interpreting a text, for example, we must presume that “we are not yet so

advanced that there is not something about which we would have to admit that we are wrong in

some respect.” Disagreement between a past understanding and new interpretation can compel 1

revision of one or the other. Discrepancy can even arise between our conceptual classification

systems and that contained in or manifestly appropriate to the object of interpretation. Since the

classification systems are theories about the object, call this sort of discrepancy a theoretical

disagreement. We have reason, then, to expect that a good theory of interpretation will treat

theoretical disagreement as genuine. Heidegger faces a challenge to his theory if we have reason

to suspect that he cannot treat theoretical disagreements as genuine. And I think we do. For,

Heidegger holds a criterial theory of concepts: for two people to disagree about an entity’s

properties, they must agree on the criteria for being that kind of thing. As an argument made by

Ronald Dworkin in Law’s Empire shows, at least one version of the criterial view is inconsistent

Heidegger, Basic Concepts of Aristotelian Philosophy, 5.1

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with treating theoretical disagreements as genuine. Dworkin’s argument, then, poses a challenge

for Heidegger’s theory of interpretation.

The paper has the following structure. I will first present Dworkin’s argument that the

criterial theory of concepts is inconsistent with theoretical disagreements. This presentation has

two sections: the first specifies what a theoretical disagreement is; the second presents the

argument. With Dworkin’s argument on board, I will present Heidegger’s hermeneutic theory of

the understanding and argue that Heidegger is in need of a response to Dworkin’s argument. This

presentation also has two sections: the first outlines the fore-structure of the hermeneutic

understanding; the second shows that Heidegger is committed to a criterial theory of concepts.

I. Dworkin’s Argument

In Law’s Empire, Ronald Dworkin presents an argument, dubbed the Semantic Sting

Argument (SSA), intended to indict a certain branch of legal positivism and induce a paradigm

shift in legal philosophy. The positivists in question hold that talk about the law (e.g., of the

United States) requires tacit agreement about the criteria for being part of the law; let us call

them semantic positivists. The indictment accuses the semantic positivists of having to give an

error theory concerning the theoretical disagreements in which lawyers and judges engage. These

positivists must treat manifestly theoretical disagreements as merely conceptual disagreements

despite the centrality of the former in legal argumentation. By dint of the SSA Dworkin

diagnoses the positivist’s error as a consequence of a criterial theory of concepts, which is

entailed by the positivist’s reduction of the law to a set of social-historical facts. To avoid this

positivist error, Dworkin declares a shift to accounting for the nature of the law on the basis of

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how judges and lawyers interpret it. In other words, Dworkin, like Heidegger, offers a

hermeneutic theory, in which he takes theoretical disagreements to be a central phenomenon.

A. Theoretical Disagreements

Dworkin’s SSA depends on the claim that theoretical disagreement is a central

phenomenon in our legal practices. If so, any account of the nature of law ought to treat

theoretical disagreement about it as genuine. What, then, are theoretical disagreements and what

is it to treat them as genuine?

Let us begin by imagining a case of competing interpretations of the law. Imagine that 2

the Supreme Court is hearing an appeal from a non-profit organization that a law prohibiting it

from publishing an electioneering video should not apply to it. The court rules that the regulatory

law in question does not apply because it is unconstitutional; and, in the process, the court

overturns precedent rulings that upheld the Congress’s ability to pass laws that regulate the use

of corporate funds for electioneering purposes. The majority argues that such regulation is

contrary to the right of free speech guaranteed by the First Amendment because the amendment

does not provide for limiting the rights of speakers on the basis of speaker identity. For that

reason, any prior decision that permits such discrimination must be rejected. In the dissent, the

minority argues, among other things, that the interpretation of the First Amendment alone does

not justify this break with stare decisis, the principle that precedents ought to stand all other

things equal. The dissent asserts that although one may revisit precedent for the reason that a

prior decision is inconsistent with the correct interpretation of the Constitution, one may not

What follows is a somewhat fictionalized account of one of the points of contention in Citizens United v. Federal 2

Election Commission, 558 U.S. 08-205 (2010). Although I present a dispute about the status of stare decisis as if both the decision and the dissent argued over its application in the case, Justice Stevens makes a good case for believing that the majority did not even address the issues of stare decisis that the argument for their decision raises.

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overturn the precedent without further argument concerning the validity of the precedent. Other

considerations bear on the maintenance or rejection of precedent; for example, one ought to

reconstruct the reasons why those who established the precedent did not believe it to conflict

with the Constitution and prior precedent. On this point of stare decisis jurisprudence the

majority disagrees, holding that finding a precedent inconsistent with the Constitution is

sufficient for overturning it.

This disagreement over what stare decisis requires is what Dworkin calls a theoretical

disagreement. As Dworkin explains theoretical disagreements within jurisprudence, they are 3

disagreements about the grounds of law, which are propositions whose truth and falsity make a

particular proposition of law true, where a proposition of law is a claim a person may make

“about what the law allows or prohibits or entitles them to have.” We must distinguish between 4

the law in a particular case and the reasons for that being the law in that case. The former is a

matter of specific legal right, entitlement or requirement for a particular person in a particular

situation, which, of course, no legal authority has specifically enacted. The latter, on the other

hand, are whatever legal facts support the conclusion that the law is such and such in a particular

case. In the above example, Citizens United was found to have a legal right to publish its

electioneering video partially on the grounds that stare decisis only requires that precedents

found to be consistent with the Constitution be upheld but not otherwise. Citizens United has the

specific legal right of publication in this case, and it has that right because (putatively) it is a

Stavropoulos, Objectivity in Law. Stavropoulos uses “substantive disagreement” and, as a bit of anecdotal 3

evidence, I’ve found most philosophers understand this term more readily than “theoretical disagreement.” I’m going to persist with Dworkin’s terminology.

Dworkin, Law’s Empire, 4.4

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legal fact that precedents are only valid when they are found consistent with more basic

principles. This latter legal fact grounds the particular legal right.

Of course, not every disagreement about what the law is in a particular case need be

theoretical; some are empirical. Taking an example from Dworkin, “Lawyers and judges might

agree, for example, that the speed limit is 55 in California if the official California statute book

contains a law to that effect, but disagree about whether that is the speed limit because they

disagree about whether, in fact, the book does contain such a law. We might call this an empirical

disagreement about law.” Empirical disagreements about the law are disagreements about the 5

legal facts to which one can ostend or advert, such as the text of a legally valid document. In the 6

Citizens United case, the justices might have disagreed over whether the text of the challenged

regulation explicitly stated that non-profit organizations are to be regulated by it without

disagreeing about the meaning or implications of the text. This would have been an empirical

disagreement. I admit that it is implausible that such a disagreement would arise in their written

opinions, and that empirical disagreements about the law seem trivial. But this only makes the

contrast with theoretical disagreements all the starker.

Since many legal arguments turn on different opinions about the grounds of the law,

theoretical disagreement is a widespread legal phenomenon. Hence, legal theorists ought to treat

them as genuine. How might a theorist fail to do this? The theorist might treat these

disagreements not as theoretical but rather as merely conceptual. In merely conceptual disputes 7

Dworkin, Law’s Empire, 4-5.5

Although it is somewhat tempting to think that empirical disagreements about the law include disagreements over 6

the proper description of the case at hand, this is incorrect. Strictly speaking, a disagreement about the proper description is not about what the law is in that particular case but rather about what the particular case is.

I use the terms “merely conceptual disagreement” or “conceptual disagreement” in accordance with Dworkin’s 7

student Nikos Stavropoulos’s treatment of the Semantic Sting Argument. Stavropoulos, Objectivity in Law.

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often the same word is used by two disputants to invoke different concepts, and an apparent

disagreement arises; however, the disagreement is not genuine because the two disputants are not

talking about the same thing. To take an obvious example, I might point to a tree root protruding

from the side of a river that runs by the Bailey Savings and Loan and say that the root is part of

the bank. To this, you might reply, “What? The bank’s property line ends five yards before the

tree.” Clearly, you and I are not disagreeing on anything except which entity is meant by ‘bank’

in this case. Once, I clarify that I meant the side of the river and not the financial institution, the

dispute will cease. It turns out that we were simply talking past one another. I was talking about

one thing and you another.

To treat a theoretical disagreement as a conceptual disagreement, then, is to deny that the

apparent theoretical disagreement is really about the same thing. In the legal example above, the

disagreement over stare decisis seems to be about what the law is. Contrary to this appearance, if

it were a conceptual disagreement, it would not be about what the law is but rather about whether

one of two different concepts of law (law1 and law2) is the concept of law enshrined in our legal

system. Law1 and law2 agree with the general articulation of stare decisis provided above;

however, they differ on how to understand the ceteris paribus. According to law1 stare decisis

only requires that one find a precedent inconsistent with the Constitution for the precedent to be

overturned. According to law2 one must deliberate further before overturning the precedent. The

majority holds that law1 is the law, and the dissent holds that law2 is the law. To treat their

theoretical disagreement as a conceptual disagreement is to hold that at most one of them is

actually talking about the law of the United States, while the other is not. If this is a merely

conceptual disagreement, one or both is just mistaken about which concept our legal system

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instantiates. To reduce theoretical disagreements to conceptual disagreements in this way is to

fail to treat them as genuine, that is, to treat the disputants as not disagreeing about the very thing

they appear and believe themselves to be disputing. Thus, to treat them as genuine is to allow for

their competing assertions about the disputed grounds to be about that the law.

As we will see in what follows, the SSA shows that semantic positivists are committed to

treating these theoretical disagreements as merely conceptual and so as ungenuine.

B. The Semantic Sting Argument (SSA)

In the SSA Dworkin aims to show that semantic positivists cannot treat theoretical

disagreements as genuine. Among purported semantic positivists are Austin, Hart, and Raz; 8 9

their common semantic commitment is that they “suppose that lawyers and judges use mainly the

same criteria (though these are hidden and unrecognized) in deciding when propositions of law

are true or false; they suppose that lawyers and judges actually agree about the grounds of law.” 10

According to Dworkin’s description, the semantic theorists hold that two assertions are about the

same law just if the concepts of law used in each assertion (or implicitly referenced anyway)

have the same criteria––that is, necessary and sufficient conditions––of legality. Whatever a

jurist asserts about the law, she asserts it about something possessing certain properties that are

necessary and sufficient for being the law, and these properties are inscribed in the concept.

I am distorting the truth a bit here. Dworkin avers that natural law theorists and legal realists could also be 8

semanticists. But I know of no examples, and Dworkin seems to think it is an implausible possibility: Dworkin, Law’s Empire, 35-7

Hart denied being a semantic theorist in Dworkin’s sense, but see Zipursky for a different take on Hart. See Hart, 9

Concept of Law, and Zipursky, “Model of Social Facts.” Raz accepts the mantel and does not believe that the SSA is a sound argument. See Raz, “Two Views.” Austin’s command theory bears the least controversial application of the term ‘semantic theory.’ On his view what the law is depends on what the sovereign commands; hence, the words of the sovereign hold the ultimate power. See Austin, Province of Jurisprudence.

Dworkin, Law’s Empire, 3310

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The aim of most semantic theories is to support a legal theory based around a putatively

important desideratum, namely, that whatever the law is is just a matter of historical fact about

the society to which the legal system belongs. Since all historical facts are in principle 11

observable from the right perspective, these “plain-fact views” hold that all legal disagreements

are empirical or conceptual. In cases where a disagreement appears to be theoretical, the

disputants are either arguing over something that can be settled by looking through the law books

or citing some historical fact, or they are arguing not over what the law is but only what it should

be. Consider, for example, Hart’s theory of law, which is founded on the rule of recognition. The

rule of recognition is the criterion of law, according to which anything that is law is law because

it was enacted in accordance with the rule. In the United States a gross approximation of the rule

of recognition would be that something is a law if and only if it is written in the Constitution or

has been made in accordance with the relevant processes contained therein. Thus, Hart would say

that the disputing justices in the Citizens United case ought to peruse the history of legislation

and Constitutional jurisprudence for an answer to the question about stare decisis; if they do not

find anything there, then their dispute is no longer about what the law on stare decisis is but what

it should be. Clearly, a legal theory like this one leaves out the possibility that they are

disagreeing over what the law is and that that disagreement cannot be adjudicated by empirical

research. In other words, plain-fact views treat theoretical disagreements as ungenuine.

What argument can a semantic positivist provide to defend her view on theoretical

disagreement? Here enters the semantic thesis. As we saw above, the semantic theory holds that

jurists must share the same criteria for being law in order to be disagreeing about the same law

Dworkin calls this kind of view the ‘Plain-Fact View.’ See Dworkin, Law’s Empire, 6.11

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and what it requires in a particular case. Otherwise, the jurists are not even disagreeing about the

same thing: in Dworkin’s words, “Their arguments are pointless in the most trivial and irritating

way, like an argument about banks when one person has in mind savings banks and the other

riverbanks.” The criteria––the necessary and sufficient conditions––of the concept of law are 12

the grounds for being law, the subject of putative theoretical disagreements. Thus, if the semantic

theorist is correct about the way that our concept of law provides us access to the legal

phenomena, then the plain-fact view seems the best way to account for the phenomena, and we

are bound to give a widespread error theory concerning the appearance of theoretical

disagreements.

This semantic theory is neither clearly counter-intuitive nor uncontroversially false. Non-

sense words such as ‘whatchamacallit’ seem to lack meaning not because they fail to reference

any entity but because they lack criteria for distinguishing any entity from any other. We cannot

have a disagreement over a whatchamacallit because we do not share criteria for its

individuation. Further, philosophers who have held and still hold to the thesis that sense

determines reference either implicitly or explicitly argue for the thesis from the need to ground

communication. In the past, Frege, for example, puzzled over the term ‘I’ because its sense could

not be shared between speaker and hearer. In the present David Chalmers motivates his neo-13

Fregean theory by saying, “we might once again have a grip on an aspect of meaning that is

constitutively tied to reason.” If we ask ourselves why this is a worthy aim, it seems to me the 14

answer is that it will ground philosophical discourse, that is, it will show that philosophers can

Dworkin, Law’s Empire, 44.12

Frege, “Thought”13

See Chalmers, “Foundations”14

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communicate their philosophical theories to one another despite vast disagreement. So, the

semantic positivist’s criterial view is not implausible.

Nevertheless, their view is the semantic sting. As Dworkin puts it the sting is the belief

that “unless lawyers and judges share factual criteria about the grounds of law there can be no

significant thought or debate about what the law is.” If we include within significant thought or 15

debate only that about the grounds of law and not that about the historical legal events that have

established the law, then there can also be no significant thought or debate when the jurists share

the factual criteria. The semantic presupposition, then, precludes the possibility of significant

legal debate. Thus, the SSA shows that the semantic-positivist view renders many legal

arguments either misguided or irrational. They are misguided if they take themselves to be

arguing over what the law is rather than disagreeing about the concept of law used within the

legal system. They are irrational if they are arguing over what the law is when they could

discover a decisive legal event through historical research. On the positivist view, the entire

appellate system would debate only extra-legal questions.

Once we have raised to consciousness the semantic presupposition made by these

positivists, we are able to recognize its error. The concept of law need not be criterial. If we find

another plausible theory of the concept of law that can treat theoretical disagreements as genuine,

then the legal theory of which it is a part will immediately have a great explanatory advantage

over the semantic-positivist theory because it does not require such a pervasive error theory. To

this end, Dworkin pursues a hermeneutic approach to legal theory. Here is a first approximation

of this approach: the hermeneuticist holds that what something is is determined by the

Dworkin, Law’s Empire, 4415

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interpretation of it that renders all of the attributed phenomena most coherently. In so far as

Dworkin and Heidegger attempt to develop theories of interpretation that live up to this

commitment, they share a single project. Their theories, however, are not identical, either in

scope or content. Whereas Dworkin is a hermeneuticist only for some social phenomena such as

the law and justice, Heidegger holds that every instance of understanding is interpretive. And

whereas Dworkin disavows a criterial theory of the concepts that are the subject of interpretation,

Heidegger embraces one. This latter difference summons the specter of the SSA. If Heidegger’s

criterialism commits him to treating theoretical disagreements as merely conceptual, then he fails

to satisfy an important desideratum of hermeneutic theories. In the next section I will outline

both Heidegger’s treatment of interpretation and his criterialism in order to bring the specter into

focus.

II. Heidegger’s Hermeneutic Model

To open section 32 of Being and Time Heidegger tells us that “In interpretation,

understanding does not become something different. It becomes itself.” (p.188) Here Heidegger

makes a commitment to the hermeneutic model of the understanding. He will account for how

we understand something through an account of the process of interpreting what is understood.

This account is not a doctrine of method, meant to guarantee the right answer to a question;

rather, interpretation has a certain structure that constrains what could be a right answer. Every

interpretation unfolds within a set of presuppositions about the kind of thing to be understood.

Heidegger calls this set of presuppositions an understanding of being, and the kind of thing

understood in the interpretation is determined by this understanding. As I will try to show in this

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section, Heidegger believed that the priority of the understanding of being entails that what the

facts are cannot only be a matter for empirical study. Empirical claims about what particular

things are like are conditioned by theoretical claims about which kinds of things there are. In

order to explain Heidegger’s commitment to the priority of the understanding of being I will

show that it depends on Heidegger’s account of the relation between understanding and

language.

Before I begin the treatment of Heidegger, I must clarify my use of the term “kind.” In its

common use, “kind” can be used to pick out almost any grouping of entities. A carrot is a kind of

thing distinct from cucumbers, which is another kind. But both of these belong to a common

kind, namely, vegetables, which is distinct from other kinds such as fruits and nuts. Contrary to

the common use, I am using “kind” to refer only to the most basic distinctions among groups of

entities with which we are familiar. In this sense of kind, there can be no common kind that

unites other kinds; the kind is taxonomically rock-bottom. The three prominent kinds of being 16

in Being and Time are the occurrent, which is marked by being present at space-time coordinates

and includes rocks and electrons; the available, which is marked by being of use for some

purpose and includes hammers and tables and all manners of tools; and Dasein, which is marked

by caring for itself and includes entities that exist as you and I do. According to Heidegger, 17

none of these three kinds are reducible to any of the others, and no more general kind adequately

Heidegger uses three different expressions where I am just using “kind (of being).” These are Seinsart, 16

Seinsweise, and Seinsmodus.

Of course, this list is not exhaustive, and Heidegger does not hold that it is. For example, an artwork does not fall 17

under any of the three kinds of being enumerated.

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characterizes any of them. Although the members of each kind all are in some sense, being is not

a category, genus, or kind.18

A. The Hermeneutic Fore-Structure and Disagreement

According to Heidegger’s analysis of interpretive understanding, an interpretation makes

explicit the background that enables us to understand something as something. When I

understand something as something, I do not grasp the former as an undetermined object and

then add to it the latter, which is a concept appropriate to the object. For example, when I

understand that the door has a door-knob, I do not see a protrusion from the door with the shape

of a flattened sphere and then apply to it the concept of door-knob. Rather, I see the door-knob as

a door-knob, that is, as something which when turned allows the door to swing open on its

hinges and me to escape the room. That is just what I see. The hermeneutic “as” serves to make

explicit what I see: it allows me to claim of something that it is that thing as which I see it.

This hermeneutic function of the “as” depends on a background of intelligible

possibilities which remain implicit in my interpretative claim that the door has a door-knob. For

instance, the door has a knob rather than a handle, which could also be used for opening and

closing the door. The possibility of the door having a handle in part determines my seeing that

the door has a knob. Although in this case I see that the door-knob allows for me to open the

door, the door is also for restricting access to the room, and the knob could be locked from the

outside such that I would not be able to escape through it but would have to resort to going out

through a window. In this case, the door-knob can be used to gain access to the halls that lead to

more doors and rooms where other activities similar to the one we are engaged in now take

Heidegger, Being and Time, 318

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place. I could not exhaust the litany of possibilities that fill in the context within which I see this

door-knob; however, for the door-knob as such to be intelligible to me I only need to understand

how it can be used in most contexts. As Heidegger says, “The available [e.g., a door-knob] is

always understood in terms of a totality of relevance. This totality need not be grasped explicitly

by a thematic interpretation. Even if it has undergone such an interpretation, it recedes into an

understanding which does not stand out from the background.” By understanding the typical 19

possibilities for using a door-knob I have at least a partial understanding of all its possibilities, or

the totality of relevance, which is sufficient for understanding the door-knob I see.

This background of interpretive intelligibility, then, constrains the understanding I make

explicit in my interpretation. According to Heidegger this global constraint can be analyzed into

three mutually determining components: the fore-having, the fore-sight, and the fore-conception.

The fore-having is whatever the interpretation is about. In the example of seeing the door-knob,

the interpretation is about the door-knob. If we are interpreting a text, such as Being and Time,

then the interpretation is about whatever the passage, chapter, or book is about and what the text

says about that. In our case, the interpretation is about interpretation and what Heidegger says

about it. In the example from the law given above, the fore-having of the theoretical

disagreement is the principle of stare decisis. In each case the object at issue is what it is only in

relation to a totality of other objects. As a result the fore-having picks out not only an object but

an entire context into which the object fits. And the fore-having would not be intelligible unless

there were an articulation of the context already available. My interpretive seeing of the door-

knob is about the door-knob in so far as I am seeing something that opens and closes the door;

Heidegger, Being and Time, 150, translation adjusted.19

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Heidegger’s text is about interpretation as our ability to make explicit a relevant piece of the

background that allows me to see something as something; the justices disagree over stare

decisis in so far as they disagree over the precise legal principle that specifies the conditions

under which precedent ought to stand. These articulations of the fore-havings are the fore-sights

of the interpretations. The fore-sight picks out the kind of thing at issue within the fore-having;

in each case the fore-sight is an understanding of being. But these fore-sights would not be

intelligible without some prior understanding of the terms in which they are articulated. The

door-knob is identified as something for something or in order to do something, namely, opening

and closing; interpretation is elaborated through the distinction between explicit and implicit; and

stare decisis requires conceptions of validity, the conditions that could effect a laws status as

valid, and the ability to identify past legal decisions. In each case the concepts invoked in the

fore-sight take us beyond the naming of the fore-having and connect it with a web of other

concepts needed for unraveling an interpretation. This web into which something is interpreted is

the fore-conception. 20

The driving thought governing this three-fold structure of interpretation is that for an

interpretation to be about something, we must be able, prior to undertaking the interpretation, to

individuate what the interpretation is about. In other words, the identity-conditions of the object

of interpretation must already be at least tentatively settled in order for the interpretation to get

off the ground. Otherwise, it will not be clear that the interpretation is about anything at all. In

the three examples above, the fore-conception in terms of which the fore-sight articulated the

This is not an uncontroversial treatment of the fore-structure of the understanding. For the pragmatist alternative 20

see Dreyfus, Being-in-the-world and Okrent Heidegger’s Pragmatism. I have not argued against that reading because this paper starts by assuming Heidegger is a hermeneutic philosopher. The hermeneutic reading, which I summarize in this treatment of the fore-structure of understanding, has been thoroughly discussed in Lafont World-disclosure.

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fore-having revealed the kind of thing under discussion. The door-knob is a kind of tool, a

member of the available; interpretation is a human capacity; and stare decisis is a principle of

law. If, say, I had pointed to the plaque on the wall and said, “I’ll use that for my getaway,” you

might wonder whether you had missed the set up for the punch line, but you would not think that

my statement was genuinely about the plaque as such. Moreover, if I told you that I have a slith-

dith and you, as I expect, do not even know what kind of thing a slith-dith is, then you will not be

able to make any sense of what I said; whereas, if I told you that I have a widget, you will be

able to make some sense of what I have said by making analogies with other tool-like objects,

even though widgets do not exist and have no distinctive properties associated with them. In 21

the case of widgets we could not give specific identity-conditions because we could not

distinguish a widget from a spoon or soup can. Nevertheless, we can provide some minimal

identity-conditions in so far as a widget is not a thought or a problem––things I could also have

in some sense. But, in the case of a slith-dith, not even such minimal identity-conditions could be

provided. Talk of slith-diths is non-sense because we share no presuppositions about the kind of

thing they are to support our communicating about them. For us to communicate, the identity

conditions of slith-diths––indeed, objects generally––must precede explicit understanding of

them. For this reason, the identity conditions cannot be empirically observed from a privileged

perspective and, as Heidegger concludes, “An interpretation is never a presuppositionless

apprehending of something presented to us.” 22

Contrast the case of an assertion that I have a unicorn. They do not exist, but the concept has distinctive properties 21

associated with it, namely, being horse-like and having a single horn on its forehead.

Heidegger, Being and Time, 150.22

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If theoretical disagreements are possible within Heidegger’s hermeneutic model, then

they are about the kind of object at issue in an interpretation. But not just any disagreement over

the properties appropriate to the kind at issue constitutes a theoretical disagreement. Some

properties are essential to the kind, while others are not. Although the fore-conception brings

with it a network of essential and inessential properties, Heidegger isolates a particular set of

properties as the essential ones and calls them the basic concepts. These are the presuppositions

an interpretation cannot do without. Echoing a point made less clearly in the introduction to

Being and Time, Heidegger says in a lecture from 1941, “Under ‘basic concepts’ one usually

understands those representations that delimit for us a region of objects in its entirety or in

accordance with individual but guiding reference points [Hinsichten]. Thus, the concept of

‘force’ is a basic concept of natural science; the concept of ‘culture’ is a basic concept of history;

the concept of ‘law’ is a basic concept of jurisprudence...” The basic concepts represent the 23

properties that an entity must possess in order to be of a certain kind. They are the grounds for

any empirical discovery I might make about an entity, but themselves are not empirically

discoverable. Thus, the basic concepts function for Heidegger as the grounds of law do for

Dworkin. Disagreements about the basic concepts are the candidates for reconstructing

theoretical disagreements within Heidegger’s hermeneutic model. Can we do this? In the next

section I will present an initial reason to believe that we cannot.

B. Heidegger’s Criterialism

Heidegger Grundbegriffe,11; the previous reference is to Heidegger, Being and Time, 9.23

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As we have just seen, Heidegger’s hermeneutic theory holds that we anticipate the kind

of thing we are experiencing in order to experience the thing. Our understanding of the kind

precedes our understanding of the entities that instantiate that kind, and the prior understanding

cannot be derived from observations of entities alone. Instead, we project the prior understanding

of the kind onto what there is. In Heidegger’s terms, we have a factical understanding of being

that is the condition of possibility of understanding entities in the world. But I have not answered

an important question regarding the status of the precedent of the understanding of being: in

what sense is the understanding of being prior to that of entities? As I will show in this section,

Heidegger’s answer to this question commits him to a criterial theory of concepts similar to that

held by the semantic positivists targeted by Dworkin’s SSA.

In general one could give two different answers to this question. One could claim that the

the understanding of being is a priori for experiences of the various kinds. Or one could claim

that the understanding of being provides defeasible presuppositions without which entities would

be indistinct or unintelligible but which can be revised in light of experiences of the entities. If

we give the former answer, we would commit ourselves to the view that the understanding of a

kind of thing is necessary for encountering that kind of thing; without the understanding, that

kind of thing is inaccessible. If we give the latter answer, we commit ourselves to the weaker

view that the understanding of the kind is central to making discoveries about entities but itself

falsifiable on the basis of discoveries. 24

The difference between these two answers to the question tracks the difference between the hermeneutic and the 24

pragmatist reading of the fore-structure. This difference is most clearly seen in the interpretation of the fore-conception. To my presentation of it above compare what Dreyfus says of it, “The interpreter already has expectations as to what he will find out,” and “[scientists] have a certain hypothesis or fore-conception they are trying to confirm or refute,” Dreyfus, Being-in-the-world. In following the hermeneutic reading I have already implicitly presented the fore-structure with the presupposition that Heidegger holds the aprioristic view. Contrary to what Dreyfus says, on this view the fore-conception cannot be refuted on the basis of experience or experiment.

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To distinguish the two answers further, consider how each would treat the following

dispute in legal philosophy. Is stare decisis a necessary condition on the existence of a legal

system? One legal philosopher says, “yes”; another says, “no.” If we infer from these

contradictory answers that the two are not having a genuine disagreement, then we hold that it is

apriori true that (not) every legal system contains a version of stare decisis. One of the legal

philosophers just is not talking about law. On the other hand, if we infer that, despite their 25

fundamental disagreement, the two philosophers are both talking about law, then we have no

commitment to the apriority of stare decisis or any other candidate legal property. We would be 26

free to treat the proposition that every legal system obeys the principle of stare decisis as a

hypothesis sensitive to counter-examples. The discovery of a candidate legal system that lacks

stare decisis would not be decisive reason to reject it as a legal system. To use a metaphor, the

understanding of the kind would be central to our encounters with the things of that kind but not

indispensable.

Heidegger takes the apriori path. In passages such as the following, Heidegger commits

himself to the view that understanding a kind is necessary for experiencing anything of that kind:

In any discussion (logos) of entities, we have previously addressed ourselves to being; this

addressing is katēgoreisthai... When used ontologically, this term means taking an entity to task,

as it were, for whatever it is as an entity––that is to say, letting everyone see it in its being. The

It is also possible that both are saying true things about what they each individually experience as law, in which 25

case they are experiencing different things. But it is more likely that one person has a false belief about which concept of law the community uses, even though that concept structures her experiences of the law.

A superfluous but interesting aside: This version of apriority is notably different than the one advanced in 26

contemporary philosophy of language. According to current work, when I stipulate that Julius invented the zip, it is apriori true that Julius, whoever he turns out to be in the actual world, invented the zip. However, I can still meaningfully imagine what the world would have been like had Julius not invented the zip and someone else had. On the contrary, the version of apriority explicated here entails modal necessity across possible worlds and allows that in some of those worlds the expression is meaningless because nothing instantiates the name or concept.

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katēgoriai are what is sighted and what is visible in such a seeing. They encompass the various

ways in which the nature of those entities which can be addressed and discussed in a logos may

be determined a priori. 27

The categories articulate the basic properties that something of a certain kind has in virtue of

being of that kind. For example, the categories of physical things articulate the various properties

that they have as spatio-temporal objects––properties such as quantity, quality, modality, and

relation. Every assertion about a spatio-temporal object offers to the hearer a determination of 28

that object with respect to one or more of these basic properties. Which properties these are,

according to Heidegger, is determined apriori by the understanding within which the thing of that

kind is intelligible. Of course, not every property an entity of a certain kind has is determined by

the categories apriori. Some spatio-temporal objects, like tables, have hue; others, like the notes

played on a piano, do not. Only the most fundamental properties, the properties that every object

of that kind must have, are determined apriori for that kind. Or as Heidegger would put it: we

always already understand the categories that determine entities as the kinds of things that they

are.

Heidegger’s avowal of the apriori is not a superfluous perpetuation of the Kantian

tradition. On the contrary, Heidegger incurs the need for the apriori through his idealistic

presupposition that being is both “that which determines entities as entities and that on the basis

of which entities are already understood...” For being to play both of these roles in Heidegger’s 29

theory, the individuation conditions of the entities must be relative to our understanding of them.

Heidegger, Being and Time, 44-5.27

This example is taken from Kant’s Table of Categories, in Kant, Pure Reason, 212.28

Heidegger, Being and Time, 629

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The difference between the kind of thing a table is and the kind of thing a poem is depends on

how we individuate things of each kind, as either tool or artwork. If that difference depends on

us, then the differences in kinds are prior to any experience of them; they are apriori.

But why does Heidegger persist within the idealist framework, especially since her

rejects Kant’s foundation of the apriori on the rational subject? The answer is that Heidegger

believes that communication is only possible if the partners in the communication share the same

understanding of the being of the kind at issue. Heidegger interprets this understanding as 30

articulated through our capacity for discourse with others, which is instantiated by a natural

language we share with others in our community. In Heidegger’s words, “The intelligibility of

something has always been articulated, even before there is any appropriative interpretation of it.

Discourse is the articulation of intelligibility... The way in which discourse gets expressed is

language... Discourse is language existentially.” From this series of claims, we see that on 31

Heidegger’s account language contains the understanding of being that determines entities as

entities. If a shared language contains the basic concepts required for distinguishing different

kinds of things, then the apriori claims are true not in virtue of the concepts an individual

happens to have or intend but in virtue of the standards of the language-community to which the

individual belongs. Thus, the normative force of the apriori, according to Heidegger, is based on

the fact that in order to participate in a meaningful discourse with others, an individual must

adhere to the linguistic norms of the community.

I am recapitulating an argument made in Lafont, “Synthetic A Priori.”30

Heidegger, Being and Time, 16131

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As should be clear by now, Heidegger’s commitment to the apriori entails a commitment

to a criterial theory of concepts. Just as we saw in the case of the semantic positivists, Heidegger

must conclude that in order for two people to be talking about the same thing, they must share

the same basic concepts for distinguishing the kind of thing that it is from another. Since these

criteria are apriori and determined by the language community, disagreement about them can

only be a merely conceptual disagreement, but not a theoretical disagreement. Any genuine

disagreement between members of the community must be grounded by a tacit agreement about

the basic concepts. Therefore, Heidegger too might be stung by Dworkin’s SSA. 32

The tacit agreement that supports communication among the averagely competent members of the language 32

community arises from their socialization into a language that has been handed down. The concepts contained in the language originated with experts who first articulated the inferential connections the concept makes available, which are based on the expert’s understanding of being. The concept then takes root in the language as it is passed along from the originating expert to the rest of the community. New experts can then retrieve the first expert’s insights through rigorous research into the concept, but this is unnecessary for competent use. Competent use of a concept only requires continuing to participate in the community wide game of whisper-down-the-lane (a.k.a., telephone). As long as the language users are using that original expert’s concept, they are in agreement about the kind of thing they are talking about, even if they are unaware of this or have mistaken beliefs about it.

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