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August 3, 2007

"Explaining Theoretical Disagreement"

I have posted a draft of the main paper I've been working on this summer here.  Here is the abstract:

Shapiro (2007) has recently argued that Dworkin posed a new objection to legal positivism in Law's Empire, to which positivists, he says, have not adequately responded. Positivists, the objection goes, have no satisfactory account of what Dworkin calls “theoretical disagreement” about law, that is, disagreement about “the grounds of law” or what positivists would call the criteria of legal validity. I agree with Shapiro that the critique is new, and disagree that it has not been met. Positivism can not offer an explanation that preserves the “face value” of theoretical disagreements, because the only intelligible dispute about the criteria of legal validity is an empirical or “head count” dispute, i.e., a dispute about what judges are doing, and how many of them are doing it (since it is the actual practice of officials and their attitudes towards that practice that fixes the criteria of legal validity according to the positivist).

Positivism, however, has two other explanations for theoretical disagreement, which “explain away” rather than preserve the “face value” disagreement. According to positivists, either theoretical disagreements are disingenuous, in the sense that the parties, consciously or unconsciously, are really trying to change the law, that is, they are trying to say, as Dworkin puts it, “what it should be” not “what the law is”; or they are simply in error, that is, they honestly think there is a fact of the matter about what the grounds of law are, and thus what the law is, in the context of their disagreement, but they are mistaken, because, in truth, there is no fact of the matter about the grounds of law in this instance precisely because there is no convergent practice of behavior among officials constituting a Rule of Recognition on this point. The “Disingenuity” and “Error Theory” accounts of theoretical disagreement are explored, with attention to the theoretical desiderata (e.g., simplicity, consilience, methodological conservativism) at stake in choosing between competing explanatory theories. Particular attention is given to the best explanation for Riggs v. Palmer in light of the actual historical context of the decision and other opinions by the Riggs judges in contemporaneous cases.

I'll be presenting this at the ANU later this month, and hope to prepare a revised version thereafter.

Posted by Brian Leiter on August 3, 2007 in My Articles | Permalink


Great paper. It definitely succeeds in framing the issues clearly, though I do think there's more to be said on behalf of Shapiro's/Dworkin's argument. Posted some longer, though still fragmentary, thoughts at my link.

Posted by: X. Trapnel | Aug 7, 2007 10:16:05 PM

I agree with the paper’s central conclusions. I was surprised though by the lack of references to the “Uncertainty in the Rule of Recognition” section (beginning 147) of Chapter 7 of Hart’s The Concept of Law. In that section Hart doesn’t provide nearly as full a treatment of the problem as you did in your paper, but it’s still (in my view) very good, and of course predates Dworkin’s “new critique” by twenty-five years. (Another instance of “answered-and-asked” in the Hart-Dworkin debate.) After explaining that a question about the criteria of legal validity is an “empirical question” (150), Hart describes a situation where the rule of recognition is uncertain. Similar to your “Disingenuity Account”, Hart discusses judges who “prefer to disguise” their choices of law (where the rule of recognition is uncertain) as discoveries of law (153). Etc.

Posted by: R. Morgan | Aug 17, 2007 11:54:58 AM

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