Explaining Theoretical Disagreement

Abstract Positivists, according to Dworkin, have no satisfactory account of what he calls “theoretical disagreement” about law, that is, disagreement about “the grounds of law” or what positivists would call the criteria of legal validity. Positivism, the objection goes, cannot offer an explanation that preserves the “face value” of theoretical disagreements, because the only intelligible dispute about the criteria of legal validity is an empirical or “head count” dispute, that is, a dispute about what judges are doing, and how many of them are doing it. Positivism, however, has two explanations for theoretical disagreement, which “explain away” rather than preserve the “face value” disagreement. According to…