Theoretical Disagreements in Law:  Another Look

Leiter, Brian

Theoretical Disagreements in Law: Another Look

D. Plunkett, S. Shapiro, & K. Toh (eds.), ETHICAL NORMS, LEGAL NORMS: NEW ESSAYS IN MEATETHICS AND JURISPRUDENCE (Oxford University Press, Forthcoming)

22 Pages Posted: 31 Aug 2016

See all articles by Brian Leiter

Brian Leiter

University of Chicago

Date Written: August 10, 2016

Abstract

In "Explaining Theoretical Disagreement" (2009), I defended an answer to Dworkin's argument that legal positivists can not adequately explain disagreements among judges about what the criteria of legal validity are. I here respond to a variety of critics, in particular, Kevin Toh. I argue that Toh misrepresents Hart's own views, and misunderstands the role of "presupposition" in both Hart and Kelsen. I argue that a correct reading of Hart is compatible with the error-theoretic interpretation of theoretical disagreement I defended in 2009.

Keywords: legal positivism, theoretical disagreement, H.L.A. Hart, Ronald Dworkin, Kevin Toh

Suggested Citation: Suggested Citation

Leiter, Brian, Theoretical Disagreements in Law: Another Look (August 10, 2016). D. Plunkett, S. Shapiro, & K. Toh (eds.), ETHICAL NORMS, LEGAL NORMS: NEW ESSAYS IN MEATETHICS AND JURISPRUDENCE (Oxford University Press, Forthcoming), Available at SSRN: https://ssrn.com/abstract=2830732