Disagreeing about disagreement in law: The argument from theoretical disagreement 
23 March 2012
3-5pm
Venue: Room 501 (Pat Hanan Room), Arts 2 (Building 207)
Department of Philosophy research seminar by Tim Dare.
What are judges and lawyers disagreeing about in hard cases, and why does it matter? Ronald Dworkin argues that such disagreements are typically 'theoretical', rather than empirical, and of central importance to our understanding of law, showing 'plain fact' theories, such as HLA Hart's sophisticated legal positivism, to be false. The argument from theoretical disagreement (ATD) targets positivism's commitment to idea that the criteria a norm must meet to be valid in a given jurisdiction are constituted by a practice of convergent behaviour by legal officials. The ATD suggests that in hard cases there is no such pattern of convergent behaviour.
Positivists are divided over the force of the ATD. Jules Coleman has said that Dworkin "simply misdiagnoses the situation in which we disagree about the criteria of legal validity in our community". Scott Shapiro has argued that it poses "the most serious threat facing legal positivism at the beginning of the twenty- first century". Brian Leiter concludes that "it does not appear to amount to much". Much of this disagreement over the force of the ATD can be understood as disagreement over just what it is that legal officials disagreeing 'theoretically' are disagreeing about.
Once the scope of empirical and theoretical disagreements is more accurately plotted, we will see that the actual disagreements which occur in hard cases are not ones which threaten a deeper and pervasive pattern of convergent behaviour, one which focuses not upon rules specifying criteria of legal validity, but instead upon broad processes for making, interpreting, and applying law. Such an account remains positivist, relying on the social fact that there is such a consensus, but allows for considerable disagreement between legal officials deciding cases within such procedures.
