Theoretical Disagreement

In the philosophical region of law, legal positivism is a school of thought that delineates that law is a social construct that aligns and is synonymous with societal norms that have become law due to legislator creation or court precedent. According to the legal positivism philosophy, there is no connection between law and reason, law and divine commandments, law and human rights—righteousness (secular or otherwise) have no place in law, according to legal positivism (“legal positivism”). While this theory is ultimately flawed, there are some good ideas that can be taken from the current legal positivist view and incorporated into an amended philosophy that actually works for and by the people. 

This above definition of legal positivism can be quite conceptually disturbing since the application of law affects all involved in a society, and one can easily imagine slews of unfortunate consequences to a fervent denial that law has anything to do with morals or ethics. This imagined insidiousness is further underscored by the fact that the term “positivism” is within the title of this philosophy. However, the term “positivism” is not meant to suggest “positivity” and all the connotations that come with that word. Instead, the term “positivism” derives from the idea that law is “posited” as opposed to being a set of rules that have been “naturally derived” from obvious universal truths (which was the prevailing belief associated with natural law theory). Legal positivism arose to directly oppose natural law theory—this new opposition (legal positivism) stated that a society’s laws are not untouchable or divine; instead, they are but a set of chosen rules and enforced customs (“legal positivism”). 

Legal philosopher Ronald Dworkin, in studying the legal positivism of British legal philosopher H.L.A. Hart, considers the problematic issue of “theoretical disagreement.” H.L.A. Hart asserts that it is not necessary to connect ethics and morality to the law (Hart 268). But this assertion, in Dworkin’s view, does not allow for the proper placement of morals or righteousness as mandated by society within a legal framework of Hart’s design. In his book, Empire of Law, Dworkin explains “theoretical disagreement” thusly:

Earlier in this chapter, I described what I called the plain-fact view of law. This holds that law depends only on matters of plain historical fact, that the only sensible disagreement about the law is empirical disagreement about what legal institutions have actually decided in the past, that what I called theoretical disagreement is illusory and better understood as argument not about what law is but about what it should be. (Dworkin 31) 

Thus “theoretical disagreement,” in Dworkin’s view, is simply an opposing opinion toward a law in response to a valid, literal interpretation of that law. 

Dworkin mentions sample cases which provide substance to his argument. However, Dworkin intentionally chooses cases in which the rulings were counter-intuitive to common sense or normal practice. Thus these rulings appear obtuse, if not grossly incompetent or cruel. One such ruling was that a murderer receives the inheritance allotted to him—from the recently deceased who had died at his hand. Judge Gray, who heard that case, could find no law excluding murderers from the receipt of inheritance from their victim, and so he ruled that the will be executed as written despite the protests that followed his decision. 

This protestation of the ruling is a theoretical disagreement. It is entirely logical to consider that the act of murdering for inheritance should not be legally supported, but that isn’t what the law stated, so Judge Gray followed the law. In this context, any outcry would be a demand for the absence of justice. Note how Dworkin explains the semantics involved. 

The sample cases seem counterexamples to the plain-fact view: the arguments in these cases seem to be about law, not morality or fidelity or repair. We must, therefore, put this challenge to the plain-fact view: why does it insist that appearance is here an illusion? Some legal philosophers offer a surprising answer. They say that theoretical disagreement about the grounds of law must be a pretense because the very meaning of the word “law” makes law depend on certain specific criteria and that any lawyer who rejected or challenged those criteria would be speaking self-contradictory nonsense. We Follow shared rules, they say, in using any word: these rules set out criteria that supply the word’s meaning. Our rules for using “law” tie law to plain historical fact. (Dworkin 31-32) 

Dworkin’s simple explanation appears to unravel the conundrum of whether theoretical disagreements are valid in the realm of law. When using legal positivism, they are not. Legal positivism states that laws must be precisely followed semantically, else risk consequence of confounding lawlessness through the whimsical application of “should be” rulings.

However, Dworkin goes further. This issue of theoretical disagreements is the weak link that Dworkin uses in an attempt to topple the whole of legal positivism. He disagrees that law is or should be solely semantics-based and instead considers that any controversy or questioning as to how a ruling should be adjudicated is best resolved by a judge using the best of his ability to maintain or establish law as integrity through his interpretation of past laws and practices (Dworkin 95).

Dworkin’s argument that theoretical disagreements hamper legal positivism in being a workable legal philosophy is a valid argument. The well-known example of King Solomon can be used to illustrate. Two women come to King Solomon demanding custody of a baby that each woman swears is her very own. Solomon’s well known ruling was that the child be split physically in half so that it could be given equally to both of the claimants. Of course, this is a preposterous solution, and it is only used by Solomon to suss out the true mother who gives up her claim so that her child may live. The true mother, as judged by righteous action, then receives the child; and the false mother is punished. Had the original ruling of King Solomon actually been enforced because his hands were symbolically tied by the letter of the law, the infanticide would have been carried out and it would have been justifiable per the normative property laws of King Solomon’s rule. The theoretical disagreement in this example would be that “no property law should condone and/or force the ending of life.” This view is logical, moral, and maintains society’s emotional and physical well-being. 

To submit that the semantics of a law make it binding, no matter how debased and horrid the ruling may turn out to be, is a ridiculous notion. While it may be sound in an ivory-tower, theoretical sense—where the only thing that matters is harmony or parallelism of concept—it has no place in actual practice. Asserting that it does is an invitation to bring the psychotic happenings of Lewis Carrol’s Alice in Wonderland (pointless caucus runs and rose painting parties) into reality.

Legal scholar and philosopher Scott J. Shapiro also notes the unsustainable nature of denying any correlation between morality and law. Just as Dworkin argued, so does Shapiro—these “should be” scenarios are validated by Shapiro (as they should be) because he can see that these are the types of issues that can bring a legal system to its knees if ignored. 

Hart’s attempt at preserving the distinction between legal and moral thought stakes out a middle ground that is unstable and unsupportable. For once it is admitted that legal concepts are normative, it becomes difficult to deny, as Hart did, that they are moral as well. The claims of law are far too serious to accept the possibility that they are amoral in nature. (Shapiro 111)

This argument, while unsupportable through means of symmetrical semantic idealism, rings true to the nature of what is understood to be correct. Without a sense of ethical foundation or integrity, laws would exist simply as exercises in mechanical busywork and oppression.

While Shapiro concurs with Dworkin that the positivist theory rings false due to the empirically observable flaws that come with an alienating of morals from legal jurisprudence, legal philosopher Brian Leiter seems to take more of an apologist’s stance toward positivism:

[T]he positivist theory fails to explain theoretical disagreement in the following precise sense: it fails to explain what I will call the “Face Value” character of the disagreement, that is, what it appears the judges are disputing when we take at Face Value what they actually say in the opinions they write and publish. They write as if there is a fact of the matter about what the law is, even though they disagree about the criteria that fix what the law is. The positivist explanation for this “disagreement” cannot vindicate what it appears they are disagreeing about. (Leiter 1223)

In Leiter’s view, positivists simply have to adjust their language so that the questions associated with theoretical disagreements become clear. This sounds like a small, achievable solution in those terms, but it is a semantical fix to a moralistic issue—also it is an advocating by Leiter of pursuing furtherance into the semantics labyrinth that is inherent in these problems of positivism.

But Dworkin has already covered this point, which reveals that the confusion that Leiter laments is not a simple case of crossed semantics where there lies a need for clarification of disagreements. Instead, Dworkin suggests these problems stem from obtuse self-occluding language wherein no party can understand himself or another and everyone ends up running into walls. 

Notice the following argument. If two lawyers are actually following different rules in using the word “law,” using different factual criteria to decide when a proposition of law is true or false, then each must mean something different from the other when he says what the law is. Earl and Gray must mean different things when they claim or deny that the law permits murderers to inherit: Earl means that his grounds for law are not satisfied, and Gray has in mind his own grounds, not Earl’s. So the two judges are not really disagreeing about anything when one denies and the other asserts this proposition. They are only talking past one another. Their arguments are pointless in the most trivial and irritating way, like an argument about banks when one person has in mind savings banks and the other riverbanks. (Dworkin 43-44)

Dworkin’s scathing commentary sends home the argument that theoretical disagreements are a problem that acts as a crumbling keystone in the positivist theory. If a court acts to do what is generally considered to be just then there will be more justice there. If a court deliberately gets lots within words because the exactitude of the word is now the priority as opposed to creating societal order and harmony then there will not be justice there. 

It is for the above reason that Hart’s legal theory fails to inspire, and why it inherently fails to capture theoretical disagreements. New precedent or rulings on special cases where there are theoretical disagreements cannot stem from words and should not. For theoretical disagreements are in the realm of the moralistic; the collective gut-feeling about what is fair and what isn’t. 

Resolving issues of disagreement in this realm should follow a thorough consideration of what is right and what is wrong. Semantics should not enter into this consideration as it is a superfluous addition that only addresses philosophical quandaries as opposed to addressing the problem at hand. This is especially true when one considers the fact that both lawyers and judges seem to constantly be arguing the minutiae of every point around them. Whether it’s intelligence tests, psychological diagnostic methods like Jung's research synthesis, statistics of one sort or another; there is the constant nitpicking and demand for precision and certainty in a climate of fog (Dworkin 3-4). In this way, one sees that the legal system must be run on an engine of ethics, morals, integrity, and a contemplation of the individual case basis when disagreements arise. 

Despite the fact that Hart’s positivism is decimated by Dworkin on the point of theoretical disagreements, Dworkin concedes that Hart brings up a fundamental idea in his 1961 book The Concept of Law. A previous austere version of legal authority as posed by legal philosopher Austin stated that legal authority should be a “brute fact of habitual command and obedience (Dworkin 34). Hart rejected this view and instead said that: 

[T]he true ground of law lies in the acceptance by the community as a whole of a fundamental master rule (he called this a “rule of recognition”) that assigns to particular people or groups the authority to make law. So propositions of law are true not just in virtue of the commands of people who are habitually obeyed, but more fundamentally in virtue of social conventions that represent the community’s acceptance of a scheme of rules empowering such people or groups to create valid law. (Dworkin 34) 

This ground of law creates a legal system working for the benefit of the people involved with it as opposed to a closed-fist legal system that benefits a ruling class simply because they say so. It is in keeping with the moralistic integrity that Dworkin argues in favor of. Thus Hart and Dworkin do hold some parallels in what law should be, it is just that Hart comes a cropper from this ideal when he bogs his theory down by attributing undue significance to words. While laws’ language is very important, they should not take precedence above the legal integrity that Dworkin speaks of.

In examining the various assertions of legal philosophy in this paper, a slow Socratic dialog has been building and driving toward a synthesis of ideas. Hart proclaims that law is for the people, yet does not suggest that law be written in the same manner. Then there is Dworkin who notes the major problem of theoretical disagreement—that closed-fist legal philosophy, such as the one the positivists advocate, refuses to account for the “for the people” attributes of law that Hart himself so strongly advocated for. It is strange that Hart would proclaim such a thing and then turn about in the very same book and argue for the exact opposite in the way laws are made. It’s a paradoxical impossibility to apply law in an absolute and precise sense in relation to its interpretation while also attempting to always mete out the correct rulings as would be appropriate for a legal system that desires to serve the people as opposed to the rule of law. 

Entering in on the back of these two philosophers are Shapiro and Leiter. Shapiro argues that Hart denies that morals have a place in law, which is untrue (at least in part), and so can be deemed a misinterpretation of the original confusion. Leiter apologizes for the failings of Hart’s original philosophy suggesting that all that is needed is a quick fix to turn the objectionist’s arguments on their ear. This is also untrue as the problem that lies within Hart’s argument is foundational—as Dworkin has already pointed out. Thus these two, Shapiro and Leiter, while providing some help in the delineation of what the original matter of the argument was and in summarization; ultimately provide no forward momentum in the argument.

Kevin Toh, in his paper “Legal Philosophy À La Carte,” also finds his way toward this synthesis of ideas. Here he notes the feeble apologist claims of Leitner that attempt to shoo away criticisms of positivist legal philosophy:

Leiter argues that however many points that Dworkin’s anti-positivist theory of law scores by explaining “the face value” of theoretical disagreements, Hart’s legal theory (combined with the two aforementioned debunking explanations of theoretical disagreements) explains a whole lot more. It would be an epistemological folly, he suggests, to give up all the explanatory rewards of Hart’s legal theory merely because it fails to explain the face value of theoretical disagreements, and to adopt Dworkin’s theory merely because it succeeded in doing so. It should come as no surprise to the reader at this point that I believe the choice that Leiter presents is a false one. (Toh 13) 

Toh then proceeds to explain that out of the three theses he had previously mentioned, Leiter is proposing that these three theses be accepted wholeheartedly as opposed to the complete rejection of these three (as Dworkin would advocate the reader do). The theses mentioned are as follow:

• (L1) Whether a community has, or is governed by, (a system of) laws is a matter only of certain social facts existing in that community.

• (L2) Whether a particular rule is a law (or a legal rule) in a community is a matter only of certain social facts existing in that community.

• (L3) Whether some (first-order) legal claim is true or correct is a matter only of certain social facts existing in the relevant community.

Despite the full rejection/acceptance ultimatum that comes with choosing Hart’s or Dworkin’s philosophy, or the unconvincing hybrid that Leiter attempts to create through his dismissal of Dworkin; Toh wonders at why such a choice has to be made. The two views are diametrically opposed to one another, but all one needs do is to pick and choose (à la carte, if you will) to achieve a synthesis that makes sense. Toh suggests that it is acknowledged that a system of laws depends only upon social facts within a community and that each law be based on a community’s social facts, but then Toh states that the idea that a law’s verity be based on social facts or relevance to a community be tossed away (13). 

In the above-described way, all the benefits of Hart’s legal theory are realized, while also allowing for an explanation of theoretical disagreements. And so a synthesis is born that recognizes what (or more appropriately who) laws should be subject to (i.e., the citizenry), that recognizes that it exists only for them, and that allows for a clarification of itself based on the helpfulness or lack thereof of said law(s) in relation to the citizenry.

Works Cited

Hart, H.L.A. The Concept of Law. Clarendon Press: 1961. Oxford, England. Print. 

Dworkin, Ronald M..  Law’s Empire. Harvard University Press: 1986. Boston, MA. Print. 

“Legal Positivism”. Internet Encyclopedia of Philosophy: A Peer-Reviewed Academic Resource. 2011.

Leiter, Brian. “Explaining Theoretical Disagreement.” U of Texas Law, Public Research Paper No. 124. 2007. Print.

Shapiro, Scott J.. Legality. Harvard University Press: 2011. Boston, MA. Print.

Toh, Kevin. “A La Carte Legal Philosophy”. University of Texas. 2011. Print.