In this illuminating new article, Brian Leiter amplifies his criticism of Ronald Dworkin’s treatment of so-called ‘theoretical disagreements’ in law.
Why ‘so-called’? Well, Dworkin made up not only the term but the thing. He was the most inventive legal philosopher of our time. (Also, and contrary to a common belief, he could be a very nice guy. Another day, I will tell you about his kindness to me when my mother was dying and, unknown to me, so was Ronnie.)
Here is is a conjecture that suggests an explanation different from, but not incompatible with, Leiter’s:
A theoretical disagreement is a disagreement about what the law actually is (to the extent that there is actually law) in a case where most competent lawyers agree on *all* the ordinary historical and other empirical facts about what relevant people have thought, said and done. These lawyers are said to disagree *only* about how these agreed, empirical facts ‘make law’–that is, on the *bearing* of all ordinary facts on the law.
Now, the standard(s) that determine the bearing of ordinary facts on the law are usually called ‘recognition rules’, or, to be more precise ‘ultimate recognition rules’. (Some subordinate recognition rules are themselves matters of law. That is why neither the US Constitution, nor any part of it, is ‘the rule of recognition’ in US law.) The existence and content of these ultimate standards are matters of (ordinary) facts, a bit like the facts that determine the existence and content of the rules that provide the criteria for grammaticality in a natural language. (To the extent that there are facts about that: some sentences in a language are neither clearly grammatical nor clearly ungrammatical.)
So there are theoretical disagreements only if there are cases in which (a) there is law, (b) the existence or content of which is subject to disagreement among most competent lawyers, (c) who nonetheless agree on *all* the ordinary facts. But that set is empty:
Suppose the contrary. Then it must be the case that some disagreeing, competent lawyers are correct in their claim about what the law actually is, and others incorrect. (They might be incorrect in thinking it is the law that not-p, while it is actually p; but they might also be incorrect in thinking that the law is indeterminate, that it requires neither p nor not-p.) It follows that there are at least at least some ordinary facts about which those very lawyers disagree: to wit, what are the recognition rules of the legal system in question? Any legal disagreement that turns on an ordinary disagreement is not a ‘theoretical disagreement’, as Dworkin defines that term.
Suppose, now, that our Dworkinian replies: ‘this begs this question. There *are* no ‘”recognition rules” that determine the bearing of facts on law.’ This is no help. Whether or not *there are* any recognition rules is a matter of ordinary fact. A recognition rule is a matter of social custom and practice. Lawyers who disagree about whether they exist disagree about a matter of ordinary fact. So these lawyers do not have a ‘theoretical disagreement’ either.
Some philosophers never see a ditch they wouldn’t mind dying in. So they go on to reply, ‘You’ve misunderstood. My claim is that what *you* call ‘recognition rules’ are not exhausted by what *you* call ‘ordinary facts’. I say they include what I call “moral facts”.’ (Sidebar comment: a lot of legal philosophy–well, a lot of philosophy actually–works by the selective deployment of skepticism. For example, a roll of eyes over ‘recognition rules’ combined with a fond batting of lashes towards ‘moral facts’ that somehow fix the law.) But this isn’t a matter of verbal legislation, surely. One person who says that the ultimate standards determining what counts as law are exhausted by ordinary facts, and another who says they are not, disagree about the nature and content of those very standards, whatever we call them. One side is presumably not saying that it is a bad idea, or regrettable, that the ultimate standards in law should be (what most call) recognition rules. They are saying that the ultimate standards are not recognition rules at all. If other competent lawyers deny *that* then they do deny a certain matter of ordinary fact: that there are what most people call recognition rules. They deny what others assert–that in every legal system there are at least some rules whose existence is a matter of ordinary human thought, speech and action and which determine the existence and content of law So, again, they do not agree on all matters of fact while disagreeing on the content of the law.
But then how should we characterise their disagreements? Leiter, in the above piece, sets out some plausible alternatives. None of them requires that we acknowledge the existence of ‘theoretical disagreements’ about the law.