Many legal positivists no longer deny that there is a necessary connection between law and morality. This concession, however, leaves positivism’s other theses intact. Positivism’s central thesis is that, whether always the case, typically the case, or the case in at least one legal system, moral justification does not supply the criteria by which a rule or principle counts as legal. Instead, a society will have an overriding social practice or convergence of official behavior that, as a matter of social fact rather than moral reasoning, determines legality. We can then decide what the law is without committing ourselves to a view about which decision would be morally right.
If legality is determined by social convention, this being mainly a uniform judicial practice, the pull is to conclude that there is widespread agreement throughout the legal system about the ground of law and the criteria of legal validity. As a result, positivism has had a stake in presenting a picture of law in which theoretical disagreement is minimal.
If theoretical disagreement in law appears to occur somewhat frequently, however, this cuts in favor of a non-positivist conception that connects legal practice to moral assessments, which are typically controversial and subject to widespread disagreement. For instance, the legal philosopher Ronald Dworkin viewed theoretical disagreement in law as endemic, and this view supported his theory of law as rooted in moral content. Judges both interpret the legal record to determine which principle best fits the conflict and seek out the right answer based on their best construction of those principles. Because the principles that judges use to interpret the legal record are derived from the community’s political morality, disagreements over how to achieve the “right answer” will be especially contentious.
One reason that there are competing claims about the extent to which “theoretical disagreement” exists in law is that the term can be defined narrowly or broadly. The narrow view tends to focus on the interpretive method in constitutional or statutory disputes. For example, should a constitutional provision be interpreted based on the perceived original intent of its framers, its original meaning for citizens at the time, or as a shifting blueprint for the exercise of state power alive to contemporary values? Should evaluation of an enactment be limited to its text, or account for the intent of the legislators? These controversies make up the tiniest fraction of law’s practice, however vigorously they are disputed when they do arise.
This tapered construction of “theoretical disagreement” begs the question in positivism’s favor. Dworkin did not see things so narrowly. He saw controversy as inhering in the argumentative structure of legal practice. When judges disagree in what Dworkin called “the theoretical way,” these disagreements are interpretative. Judges often “disagree, in large measure or in fine detail, about the soundest interpretation of some pertinent aspect of judicial practice.” To this point, it is difficult to deny that theoretical controversy is frequent in legal practice. Dworkin’s affinity with natural law theory derived from his further claim that law’s content resides in morally justified principles that practitioners should use to construe the community’s legal practice in the most favorable light.
Some positivists have tried to reconcile the existence of theoretical disagreements in law with the commitment to a social fact-based legal theory. For instance, Scott Shapiro suggests a view of legal controversy according to which interpreters debate the point of legal practice, which is, for him, an empirical question about the political attitudes and objectives of those who “designed” the legal system. Disputes about a regime’s “animating ideology” are disputes about social facts, and the question becomes which methodology best harmonizes with that scheme.
This article similarly seeks to reconcile the existence of widespread theoretical disagreement in law with a commitment to a social fact-based legal theory. Those disagreements are not easily characterized, however, as exercises in how best to defer to the decisions of “designers” of the legal system’s political objectives and divisions of labor. While courts and litigants do sometimes debate the original rationales for rules and statutory schemes, this sort of controversy is not particularly pervasive and does not likely account for a broader occurrence of theoretical disagreement.
By taking advantage of philosophical resources just recently being developed in scholarship about the logic of institutions, this article provides a more compelling reason for agreeing with Dworkin that theoretical disagreement in law is widespread and rooted in law’s argumentative structure, while at the same time refusing to draw the inference that morality and moral controversy engenders this widespread disagreement.