A Hartian Account of Genuine Theoretical Disagreement

Abstract

In Law’s Empire, Ronald Dworkin raised what he called a new objection to Hart’s positivist theory of law. Dworkin contended that Hartian legal positivism cannot account for the genuine possibility of theoretical disagreement in the law, because, according to the positivists, law reduces to a question about social facts. This means that if there is a question about what the criteria of legal validity are, it must be resolved by answers to empirical questions, like how in fact the officials are acting, and not theoretical questions. In response, Leiter and Shapiro proffer ways of defusing the problem for the positivist. Leiter questions the face value of theoretical disagreements by showing that the prototypical examples of theoretical disagreement are disingenuous or erroneous. Shapiro shows that the positivist can account for theoretical disagreement, by looking at competing interpretive methodologies, but answering the question this way requires sacrificing the conventionality thesis of Hartian legal positivism. In this piece, I set forth a new response on behalf of the Hartian legal positivist. Specifically, I contend that the Hartian legal positivist can respond to the problem of theoretical disagreement in a way that both vindicates the face value of theoretical disagreement and maintains its critical commitments, specifically the separability thesis, the social facts thesis, and the conventionality thesis. To do so, I contend that we must attend to the role of inference and the norms of reasoning in legal discourse. Consistent with the Hartian picture, participants in a theoretical disagreement can agree about all the ground facts about the law, but disagree about the grounds of the law because they arrive at their positions by differing legal inferences and reasoning.