How to Answer Dworkin's Argument from Theoretical Disagreement Without Attributing Confusion or Disingenuity to Legal Officials.

Introduction Suppose that, as sometimes happens, two judges disagree over how to interpret a statute: one says that the statute should be interpreted according to its ordinary meaning; the other [...]
Ronald Dworkin's argument from theoretical disagreement remains a pressing challenge for legal positivists. In this paper, I show how positivists can answer Dworkin's argument without having to attribute confusion or disingenuity to legal officials. I propose that the argument rests on two errors. The first is to assume that positivism requires legal officials to converge on precise grounds of law when convergence on more general grounds will do. The second is to construe judicial speech too literally. If we pay attention to the pragmatics of judicial speech, we see that judges do not disagree over what the grounds of law are; they at most disagree over how courts should proceed when agreed-upon, though imprecise, grounds of law underdetermine what the content of the law directs in the case at hand. Key Words: Theoretical disagreement; General jurisprudence; Legal positivism; Rule of recognition; Grounds of law