Explaining Theoretical Disagreement and Massive Decisional Agreement: The Justificatory View

Abstract

In this paper, I outline and defend an alternative to Hartian legal theory that accepts the Hartian theory of a legal system yet rejects the Hartian theory of legal content in favor of a non-positivist alternative. I call this theory the justificatory view. A key argument advanced here in support of the justificatory view relies on the problem of theoretical disagreement that Ronald Dworkin poses for Hartian positivism. Moreover, I argue that a virtue of the justificatory view is that its hybrid nature shields it from the forceful criticism that Brian Leiter marshals against Dworkin’s legal theory. As Leiter observes, though Dworkin’s legal theory may do better than positivism with respect to explaining the marginal phenomenon of theoretical disagreement among legal officials, Dworkinian legal theory suffers the much greater failing of being unable to explain the background of massive decisional agreement characteristic of legal systems. I argue that because the justificatory view accepts and rests upon the Hartian theory of a legal system, it is no less able than Hartian legal theory to explain this background of massive decisional agreement.

Keywords: theoretical disagreement, non-positivism, theory of legal content, theory of a legal system