Dworkin Round III The Argument from Theoretical Disagreement

Dworkin Round III: The Argument from Theoretical Disagreement Phil 217/337 2016 Tim Dare

The Argument from Theoretical Disagreement • In Law’s Empire 1986 Dworkin argues that the disagreements cases such as Riggs v Palmer are ‘theoretical’, as opposed to empirical, and given that show ‘plain fact’ theories, such as HLA Hart’s sophisticated legal positivism, to be false. • The argument from theoretical disagreement targets positivism’s commitment to the idea that what Dworkin calls the ‘grounds of law’ – the criteria a norm must meet to be ‘legally valid’ in a given jurisdiction – are constituted by a practice of convergent behavior by legal officials • According to the ATD there is no such pattern of convergent behavior.

Positivist response to the ATD • Recent positivists are divided over the force of the argument from theoretical disagreement. • Jules Coleman has said that Dworkin “simply misdiagnoses the situation in which we disagree about the criteria of legal validity in our community” (Coleman, 2001, p. 182). • Scott Shapiro has argued that it constitutes a new and as yet unanswered strand to Dworkin’s critique, a strand that poses “the most serious threat facing legal positivism at the beginning of the twenty- first century” (Shapiro, 2007, 2011). • Brian Leiter concludes that “it does not appear to amount to much” (Leiter, 2009, p. 1250).

2. Theoretical disagreements and their significance for legal positivism • The ‘grounds of law’ determine whether ‘propositions of law’, statements about what the law allows or prohibits or requires, are true or false in a given jurisdiction. • The proposition “the speed limit is 55 mph in California” is true “if the California statute book contains a law to that effect”: the proposition about the speed limit is grounded in the statute.

Two ways to disagree about grounds of law 1. ‘Empirically’, over whether “in fact, the [statute] book does contain such a law” judges and lawyers disagreeing empirically about the California speed limit will agree that if there is a statute … that proposition will be true in California. • Empirical disagreements do not imply disagreement about the identity of the grounds of law or about what would count as satisfying them. •

Two ways to disagree about grounds of law Theoretically: • Judges and lawyers might agree, ”in the empirical way” about what statutes and past judicial decisions say about an issue before them, but disagree about whether those sources “exhaust the pertinent grounds of law”. • e. g. Are the ground of laws merely the statutes and judicial decisions of a jurisdiction or are they broader, including perhaps other moral, political, or economic resources? (Think about Riggs v Palmer)

Theoretical Disagreements … • …. will not be settled by empirical enquiry. It will not help to look to see what is in the statute books or reports of judicial decisions if what issue is whether what will be found in those resources exhausts the grounds of law.

Why do theoretical disagreements so understood trouble legal positivism? • Because a Hartian rule of recognition will exist in a legal system if as a matter of fact the system’s legal officials decide questions of legal validity by reference to a particular set of criteria, and take themselves to be obliged to do so. • A system’s rule of recognition, writes Hart, “exists only as a complex but normally concordant practice of the courts, officials, and private persons in identifying the law by reference to certain criteria” (Hart, 1961, p. 110).

The California Speed Limit … • Empirical disagreement about what the set of statutes contains doesn’t show there isn’t a pattern of converging behavior of looking to the statutes, believing that there was an obligation to do so, and determining the truth of propositions of law according to what was found there.

But … • Suppose the judges disagreed over whether the set of statutes settled the truth of the 55 mph proposition; perhaps some judges thought they did, while others thought there was a principle that allowed people to drive at speeds appropriate to the conditions (pregnant passenger etc? ) that trumped the statute. • This dispute would be theoretical in the sense that it could not be settled by looking at the statutes, depending instead on settling a dispute about the grounds of law themselves. • And, since the rule of recognition consists in the agreement of the legal officials, the mere fact of that disagreement would show that the putative rule of recognition giving priority to the statute was not the rule of recognition of that system.

3. Possible Positivist Responses Accept both that there are theoretical disagreements and the implication of the argument, (i. e. , that such disagreements are incoherent), but seek to explain why legal officials persist in such disagreements and why we should nevertheless endorse positivism (e. g. , Leiter, 2009). • Abandon the feature of positivism that makes it vulnerable to the argument, namely its conventionalism (Shapiro, 2011). • Deny that there is widespread theoretical disagreement in Dworkin’s sense, showing that the apparent instances are actually something else, perhaps empirical disagreements, or disagreements over something other than the grounds of law themselves (e. g. , Hart, 1994; Coleman, 2001, Dare 2012). •

Incoherence, Disingenuousness, and Error • “According to positivists … either theoretical disagreements are disingenuous, in the sense that the parties, consciously or unconsciously, are really trying to change the law… [or] parties to theoretical disagreements are simply in error: they honestly think there is a fact of the matter about what the grounds of law are, and thus what the law is, in the context of their disagreement, but they are mistaken, because in truth there is no fact of the matter about the grounds of law in this instance precisely because there is no convergent practice of behavior among officials constituting a Rule of Recognition on this point”. Leiter, 2009

But … • Would be very odd defense of positivism, but Lieter thinks even these apparent theoretical disagreement are very rare: the great virtue of positivism is that it explains the predominant fact of pervasive agreement. • Still, (I think) the incoherence, disingenuousness and error strategy should be a last resort.

5. Abandoning convergence • The solution to the problem of theoretical disagreement, according to Scott Shapiro, is to generate an interpretive methodology that does not ‘privilege interpretive conventions as the sole source of proper methodology’ (Shapiro, 2011, p. 381). • Planning theory: • Law grounded not on convergence, but on the aims and objectives to the those who design the law (the planners) • proper interpretive methodology will be that which ‘best fits’ with the objectives set by the planners (Shapiro, 2011, p. 382).

Shapiro • Looks Dworkinian • But (says Shapiro) whereas for Dworkin the process of ascertaining interpretive methodology is as “an exercise in moral and political philosophy” “[P]lanning Theory, by contrast, “… seeks social facts. • That some set of goals and values represents the purposes of a certain legal system is a fact about certain social groups [the planners] ascertainable by empirical, rather than moral, reasoning” (Shapiro, 2011, p. 382). For Shapiro, but not Dworkin, then, what the purposes of a legal system are is a question of social fact, depending upon what aims the planners in fact had.

Key to Planning Theory for ATD • … since the proper interpretative methodology for a system is not set by and dependent upon a specific convention about proper methodology, disagreement about that methodology is not self-defeating. • Officials can disagree over proper interpretive methodology because they disagree about what the planners intended or about what interpretive methodology best harmonizes with those intentions. “It is possible, then”, Shapiro concludes: • … for the positivist to maintain that the grounds of law are determined by social facts and to account for theoretical disagreements about those very grounds, Dworkin’s contention notwithstanding” (Shapiro, 2011, 383).

Per me … • One of strengths of Shapiro’s approach is the level of generality of proper interpretive methodology: the attempt to ground such methodology in something other than “specific social agreement about which methodologies are proper” (Shapiro, 2011, p. 381). • Try to mimic that generality without abandoning conventionality (and flirting with Dworkinian neo-positivism).

Changing the subject of Disgreement 1. Dworkin mis-describes disagreement in cases such as Riggs v Palmer: • The judges agreed that the Wills Act settled the case, and that it had to be interpreted according to legislators’ intentions. • Disagreed over what those intentions were. That is an empirical disagreement - which leaves the grounds of law untouched. But still accept are genuine theoretical disagreements : maybe even Riggs on different interpretation

So now what? • What other options are there for a positivist intent on denying that there is widespread theoretical disagreement, but wishing to explain apparent instances of such disagreement while accepting that they are not all amenable to explanation as empirical disagreement?

Changing Subject of Disagreement • Begin from idea that officials in communities that support the sorts of legal systems we have been considering in fact agree upon something much broader than the criteria of legal validity that are often at issue in the argument from theoretical disagreement. • Writing in another context, Kurt Baier notes that although “there seems to be no consensus on a conception of justice, there is a consensus on something else, namely, on the procedures for making and interpreting law and, where that agreement is insufficiently deep to end disagreement, on the selection of persons whose adjudication is accepted as authoritative” (Baier, 1989, p. 775)

Baier has directed us to the right level of consensus • What legal officials in communities such as ours agree upon is not the content of particular rules of recognition, let alone the application of the criteria of validity found in those rules, but instead on sets of procedures for resolving legal disputes and for making, changing, interpreting and identifying laws.

• Given that the consensus is around such procedures, disagreement in particular cases and about the proper interpretation of general rules issued by the procedures about which there an extended pattern of convergent behaviour is not at all surprising for at least two reasons.

Two reasons for disagreement The pattern of convergent behaviour arising from the broader consensus is not manifest at the level of particular decisions. It is evident, rather, in the everyday behaviour of officials who fill the myriad of ‘law jobs’, manifesting their acceptance of the procedures that generate those jobs, the tasks they involve, and the social effects of their performance. 2. Legal practice, as Dworkin notes, is “essentially argumentative”, and the procedures that are the subject of consensus among legal officials are designed to allow argument and disagreement, albeit in forms which provide for determinative resolutions. 1.

But … • Such disagreements are, on Dworkin’s account, genuine theoretical disagreements, but they do not call into question the deeper agreement upon the legal procedures in which they take place. Those disagreements take place and presume particular procedures for resolving legal disputes and for making, changing, interpreting and identifying laws, and that is what legal officials in communities such as ours agree upon.

Cf Shapiro • Shapiro abandoned conventionality • But offered strength of generality • This alternative account sketched may be seen as an attempt to have the advantages of such generality without abandoning positivism’s conventionality. • The procedures for resolving legal disputes, for making, changing, interpreting and identifying laws that underpin our legal systems are our procedures because in fact our legal officials accept and act upon them: their status rests upon the social fact that they are the subject of an overlapping consensus between the officials of our legal system.