Who takes “the argument from theoretical disagreement” seriously?

MEXICAN LAW REVIEW, 2022

This note is based on the legal non-positivist model of Ronald Dworkin, developed in important works such as Taking rights seriously, Law’s Empire, and Freedom’s Law —the moral reading of the American Constitution—. Furthermore, the consultation of the work of this jurist is taken into ac- count, because in it a theory of justice is developed —Justice for Hedgehogs—. This note is complemented with the reference of other authors to confront this model with the legal positivism view of the Twentieth Century, in particular with the positivist legal model of H.L.A. Hart. The main purpose is to show extracts that are considered significant to the theoretical principialist Dworkinian model of law, in order to understand and distinguish this cognitive-moral non-positivist type of model. Therefore, an emphasis on fundamental rights and the exposure of the premise regarding the only correct solution, or the only answer to legal controversies submitted to the analysis of the judges in difficult cases —the so-called hard cases— is taken into account.

2009

This paper deals with the possibility of faultless disagreement in law. And it does looking for other spheres in which faultless disagreement seems possible, mainly the matters of taste and the ethical matters. Three possible accounts are explored: the realist account, the relativist account, and the expressivist account. The paper tries to show that in the case of legal disagreements there is a place for an approach able to take into account our intuitions in the sense that legal disagreements are genuine disagreements and, sometimes, these disagreements are faultless.

This paper deals with the possibility of faultless disagreement in law. It does this by looking to other spheres in which faultless disagreement appears to be possible, mainly in matters of taste and ethics. Three possible accounts are explored: the realist account, the relativist account, and the expressivist account. The paper tries to show that in the case of legal disagreements, there is a place for an approach that can take into account our intuitions in the sense that legal disagreements are genuine and at times faultless.

Mexican law review, 2022

1 ronaLd dworkin, taking rigHts seriousLy (1977) [hereinafter TRS]; ronaLd dworkin, Law's eMpire (1986) [Hereinafter Le]; ronaLd dworkin, freedoM's Law. tHe MoraL reading of tHe aMerican constitution (1996) [Hereinafter fL]. 2 ronaLd dworkin, Justicia para erizos (1st ed. in Spanish language, 2014).

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique , 2020

This paper discusses the “positivistic” idea of the limits of law in various contexts: the conceptual problem of the “limits of law”, the limits of legal interpretation and the limits of theoretical disagreements in jurisprudence. In the latter case, we briefly show how contemporary “reflective” or “critical” positivist theories approach the possibility and limits of disagreements over the “grounds” of law. In what follows, we argue that these theories, which argue for a form of an “institutional” limit for admissible “legal” reasons as built upon theories of basic concepts or normative theories of interpretation, are themselves actually underdetermined by “legal culture” or, so to speak, a “folk theory of law”. In the final section, we outline how a folk theory of law constrains both conceptual and interpretive enterprises in jurisprudence.

Professor Robert Alexy wrote a book whose avowed purpose is to refute the basic tenets of a type of legal theory which 'has long since been obsolete in legal science and practice'. The quotation is from the German Federal Constitutional Court in 1968. The fact that Prof Alexy himself mentions no writings in the legal positivist tradition [in English] later than Hart's The Concept of Law (1961) may suggest that he shares the court's view. The book itself may be evidence to the contrary. After all why flog a dead horse? Why write a book to refute a totally discredited theory? Perhaps Alexy was simply unlucky. The burst of reflective, suggestive and interesting writings in the legal positivist tradition reached serious dimensions only in the years after the original publication of his book, when Waldron, Marmor, Gardner, Leiter, Shapiro, Murphy, Himma, Kramer, Endicott, Lamont, Dickson, Bix and others joined those who had made important contributions to legal theory in the positivistic tradition in the years preceding the original publication of Alexy's book: Lyons, Coleman, Campbell, Harris, Green, Waluchow and others, who are still among the main contributors to legal theory in the positivist tradition. It is a great shame that nothing in these writings influenced the arguments of the book. Perhaps this regret is misplaced. After all 'positivism' in legal theory means, and always did mean, different things to different people. What Radbruch, one of Alexy's heroes, meant when he first saw himself as a legal positivist and then recanted was not the same as what 'legal positivism' means in Britain (and nowadays in the United States as well) among those who engage in philosophical reflection about the nature of law. Perhaps Alexy is simply addressing himself to a German audience, and refuting, or attempting to refute, legal theories of a kind identified in Germany as 'legal positivism'. Perhaps, though his references to Hart show that he does not intend it that way. My aims in this chapter are, however, reasonably clear. My main purpose is to explore whether any of Alexy's arguments challenge any of the views which I have advocated. Subsidiary aims are, first, to clarify why what Alexy says is legal positivism is not what is understood as such in the English speaking world, so that some of Alexy's sound points find no target; secondly, to try and clarify some of his arguments which I found, at least initially, rather obscure. Given the prominence of Alexy's book I will refer only to it, and will not consider his other publications.

International Journal of Comparative Law and Legal Philosophy, 2020

One of the critical problems in philosophy of law for two decades is the clash between Hart's views and those of his former student and successor as Professor of Jurisprudence at Oxford University, Ronald Dworkin. Hart is a positivist whose account of law, or 'what the law is' is always potentially different from 'what the law ought to be'. Other positivists include Jeremy Bentham, John Austin, Hans Kelsen, Joseph Raz, and a host of others. In his Essays in Jurisprudence and Philosophy, Hart brings out a number of ways the expression 'legal positivism' has been used. He discerns five tenets or contentions 'legal positivism' has assumed in contemporary jurisprudence. With this, he arrives at the conclusion that law is basically a system of rule; a union of primary and secondary rules. The opposite contention of natural lawyers appeared easily dismissed by reference to professional practice. When lawyers give information about the law, or apply the law, they often complain about its contents; they show no readiness to trace its validity back to a moral basis. If asked to justify an assertion about the law, they cite authority, not reason; precedents and statutes, not treatises about justice or the good life. Dworkin does not challenge the conventional positivist assumptions about the decision of legal questions in clear cases by the application of valid rules. In 'Taking Rights Seriously', Dworkin arrives at three important conclusions about the nature of law. First, law is not solely comprised of rules. The logic of adjudication in 'hard cases'-that is, cases about which informed people can reasonably disagree-leads him to the conviction that rules are part of the law. But in hard cases, he argues, judges are guided to their decisions by standards which are not rules. Secondly, no line can be drawn between law and morality because the non-rule standards which judges employ in order to determine 'what the law is' in hard cases include principles embedded in the community's morality. Thirdly, judges do not legislate because reasons never run out and there is never a middle ground. He insists that there must be a right answer to virtually any questions of law. It is clear Dworkin has developed a distinctive system that transcends, and bridges the gap between naturalism and legal positivism; thereby integrating law into a branch of political morality. How then are we to adjudicate between Hart and Dworkin on these issues? It is the position of this work that principles are not propositions describing rights as Dworkin upholds. Rather, principles are relatively general norms which are conceived of as 'rationalizing' rules or sets of rules'. A legal principle, in the view of the person putting it forward as a principle, explains and justifies existing legal rules. It authorizes any new ruling which it would also explain and justify. This study examines Hart-Dworkin debate and draws a response.

Anali Pravnog fakulteta u Beogradu, 2014

As the dominant direction of the study of legal phenomena, legal positivism has suffered criticisms above all from representatives of natural law. Nevertheless, the most complex criticism of legal positivism came from Ronald Dworkin. With the methodological criticism he formed in "Law's Empire", Dworkin attacked the sole foundations of legal positivism and his main methodological assumptions. Quoting the first postulate of positivism, which understands the law as a fact, Dworkin claims that, if this comprehension is correct, there could be no dispute among jurists concerning the law, except if some of them make an empirical mistake while establishing facts. Since this is not the case, Dworkin proves that this is actually a theoretical disagreement which does not represent a disagreement about the law itself, but about its morality. On these grounds, he rejects the idea of law as a fact and claims that the law is an interpretive notion, which means that disagreements within jurisprudence are most frequently interpretative disagreements over criteria of legality, and not empirical disagreements over historic and social facts.