How to Answer Dworkin’s Argument from Theoretical Disagreement Without Attributing Confusion or Disingenuity to Legal Officials

Forthcoming, Can. J. Law & Juris. https://doi.org/10.1017/cjlj.2022.23

22 Pages Posted: 14 Sep 2022

Date Written: June 6, 2022

Abstract

Ronald Dworkin’s argument from theoretical disagreement remains a pressing challenge for legal positivists. In this paper, I show how positivists can answer Dworkin’s argument without having to attribute confusion or disingenuity to legal officials. I propose that the argument rests on two errors. The first is to assume that positivism requires legal officials to converge on precise grounds of law when convergence on more general grounds will do. The second is to construe judicial speech too literally. If we pay attention to the pragmatics of judicial speech, we see that judges do not disagree over what the grounds of law are; they at most disagree over how courts should proceed when agreed-upon, though imprecise, grounds of law underdetermine what the content of the law directs in the case at hand.

Keywords: theoretical disagreement, legal positivism, Hartian positivism, rule of recognition, general jurisprudence

Suggested Citation

Watson, Bill, How to Answer Dworkin’s Argument from Theoretical Disagreement Without Attributing Confusion or Disingenuity to Legal Officials (June 6, 2022). Forthcoming, Can. J. Law & Juris. https://doi.org/10.1017/cjlj.2022.23, Available at SSRN: https://ssrn.com/abstract=4216914 or http://dx.doi.org/10.2139/ssrn.4216914

Bill Watson (Contact Author)

Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

HOME PAGE: http://billwatson.net

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