Abstract
A central premise of Ronald Dworkin’s famous Argument from Theoretical Disagreement is that judges regularly disagree about the grounds of law. The occurrence of these so-called ‘theoretical disagreements’, it is argued, cannot be explained by the influential legal positivist theory of HLA Hart according to which the grounds of law are constituted by judicial consensus. However, in his attempt to show that theoretical disagreements actually exist Dworkin primarily relies on the occurrence of judicial disagreements about legal interpretation, as he takes them to be disagreements about the grounds of law. In this article, I will argue that these interpretive disagreements do not pose a problem for Hartian positivism. My argument will rely on standard work from the field of pragmatics which provides sophisticated explanations of how the interpretation of linguistic texts, such as legal documents, works. On the model that I will propose, interpretive disagreements concern the meaning that the legal authorities who enacted the document intended to get across and these disagreements arise from diverging assumptions about the context in which these documents were enacted. I will argue that disagreements about intentions and contextual presumptions do not concern the grounds of law and therefore do not threaten Hartian positivism.
Highlights
A fiercely debated question in contemporary jurisprudence concerns the extent to which Ronald Dworkin’s Argument from Theoretical Disagreement (ATD) poses a threat to the influential legal positivist account of HLA Hart.[1]
Dworkin argues that persistent theoretical disagreements are incoherent on Hart’s theory because the theory postulates that judges who engage in a disagreement about whether something is a ground of law will conclude that it cannot be a ground of law since for it to be such a ground there would need to be conventional agreement among judges that this is so
As noted in the beginning, numerous theorists have attempted to provide an explanation of the disagreements that Dworkin invokes that is consistent with Hart’s theory but the current state of the debate seems to be that none of the proposed explanations is dispositive with regards to the ATD.[40]
Summary
A fiercely debated question in contemporary jurisprudence concerns the extent to which Ronald Dworkin’s Argument from Theoretical Disagreement (ATD) poses a threat to the influential legal positivist account of HLA Hart.[1] According to the ATD, Hart’s theory fails to explain what Dworkin calls ‘theoretical disagreements’ about law which are disagreements among the officials of a legal system about the ‘grounds’ or ‘sources’ of law of that system. These disagreements are said to pose a problem for Hart’s theory because one of its central claims is that the grounds of law of a legal system are determined by a conventional rule that is shared by the officials of that. I apply the framework to the ATD and illustrate how it can explain interpretive disagreements by providing an alternative analysis of Riggs
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