Volume 54, 2018
Philosophy of Law
Thomas Bustamante
Pages 25-30
Legal Philosophy in the Courtroom
Can Positivism Explain Theoretical Disagreements?
The paper examines the challenge that Ronald Dworkin poses to positivism when he asserts that legal discourse often comprises theoretical disagreements about the foundations of law, as well as Scott Shapiro’s answer that these disagreements, although legitimate, can be reconstructed as meta-interpretive disagreements about the proper interpretation of the legal system. Though Shapiro’s answer is partly correct, if we distinguish between ‘conceptual’ and ‘meta-interpretive’ theoretical disagreements it becomes clear that this answer fails to save positivism from Dworkin’s objection because it is unaware of the existence of theoretical disagreements of the ‘conceptual’ kind. Positivism is wrong, therefore, because it misses this important connection between legal philosophy and legal practice.