Pace Law Review
Volume 34
Issue 2 Spring 2014
Article 2
September 2014
he Improbability of Positivism
Andrew Tut
Yale Law School Information Society Project
Follow this and additional works at: htp://digitalcommons.pace.edu/plr
Part of the Law and Philosophy Commons, and the Legal History, heory and Process Commons
Recommended Citation
Andrew Tut, he Improbability of Positivism, 34 Pace L. Rev. 562 (2014)
Available at: htp://digitalcommons.pace.edu/plr/vol34/iss2/2
his Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law
Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact
[email protected].
The Improbability of Positivism
Andrew Tutt*
Abstract
Ronald Dworkin’s contributions to legal philosophy have
been subject to severe criticism in recent years.1 Other legal
philosophers call his arguments “deflected or discredited,”2
laced with “philosophical confusions,”3 and “deeply embedded”
mistakes.4 As Brian Leiter writes, “[t]he only good news in the
story about Dworkin’s impact on law and philosophy is that
most of the field declined to follow the Dworkinian path . . . .”5
This Article endeavors to show that, far from an effort beset
with primitive errors, Dworkin’s challenge to legal positivism in
the opening pages of his seminal work was neither misguided
nor trivial.6 Rather, Dworkin’s challenge remains as important
and thought-provoking today as it was when he first set it
* Visiting Fellow, Yale Law School Information Society Project; Law
Clerk, Honorable Cornelia T.L. Pillard, U.S. Court of Appeals for the District
of Columbia. The author would like to thank all of the editors of the PACE
LAW REVIEW who helped to improve this Article, especially Jaclyn
Weissgerber, Laura Young, and Karen Anzalone.
1. See, e.g., JULES COLEMAN, THE PRACTICE OF PRINCIPLE: IN DEFENSE OF A
PRAGMATIST APPROACH TO LEGAL THEORY 67, 105 (2001); Brian Leiter, The
End of Empire: Dworkin and Jurisprudence in the 21st Century, 36 RUTGERS
L.J. 165, 166 (2004) [hereinafter Leiter, The End of Empire]; Brian Leiter,
Beyond the Hart/Dworkin Debate: The Methodology Problem in
Jurisprudence, 48 AM. J. JURIS. 17, 18 (2003) [hereinafter Leiter, Beyond the
Hart/Dworkin Debate]; Dan Priel, The Place of Legitimacy in Legal Theory,
57 MCGILL L.J. 1, 3 nn.1 & 2 (2011) (collecting criticisms).
2. Brian Leiter, Explaining Theoretical Disagreement, 76 U. CHI. L. REV.
1215, 1216 (2009) [hereinafter Leiter, Explaining Theoretical Disagreement];
see also Brian Leiter, The Radicalism of Legal Positivism, 66 NAT'L LAW.
GUILD REV. 165, 165 (2009) [hereinafter Leiter, The Radicalism of Legal
Positivism] (“Ronald Dworkin . . . has made a career out of scandalous
mischaracterizations of the positivist theory of law.”).
3. COLEMAN, supra note 1, at 155.
4. Id. at 181.
5. Leiter, The End of Empire, supra note 1, at 166.
6. See generally RONALD DWORKIN, LAW’S EMPIRE (1986) [hereinafter
DWORKIN, LAW’S EMPIRE].
562
1
2014]
THE IMPROBABILITY OF POSITIVISM
563
down.7 His challenge, though straightforward, has never been
satisfactorily answered. Rather than grapple with Dworkin’s
argument, legal philosophers have either misunderstood or
trivialized his insights in the decades since.8 But there is a
reason H.L.A. Hart, one of Dworkin’s examiners at Oxford,
saved his jurisprudence examination before ever having reason
to believe that Dworkin would become the primary opponent to
legal positivism.9 Hart’s challenge—the argument from
theoretical disagreement—still burns bright nearly a quartercentury on.
Furthermore, this Article seeks to explain why legal
positivism’s inability to preserve the face value of theoretical
disagreement makes it improbable that legal positivism offers
an adequate descriptive account of the nature of law. It also
endeavors to outline why this deficiency is so immensely
important. To accept the legitimacy of theoretical disagreement
is accept that to know what the law is one must know something
about the moral and political culture in which that law resides.
I.
Introduction
A set of spelunkers are trapped in a cave, and to stave off
starvation, one man is chosen to die so that the others may
live.10 Dice choose the martyr.11 The man chosen objects, calling
it “frightful” and “odious” to mark one for death by the most
naked of chance.12 Nonetheless, upon his accession to the
fairness of the throw, he is killed and consumed by his
companions.13 The survivors are charged with the murder.14
7. See Dale Smith, Theoretical Disagreement and the Semantic Sting, 30
OXFORD J. LEGAL STUD. 635, 636 (2010).
8. See, e.g., COLEMAN, supra note 1, at 105; Leiter, Explaining
Theoretical Disagreement, supra note 2, at 1215-16.
9. See Adam Liptak, The Transcendent Lawyer, N.Y.U. L. SCH. MAG.,
Autumn 2005, at 15.
10. Lon L. Fuller, The Case of the Speluncean Explorers, 62 HARV. L.
REV. 616, 616 (1949) (illustrating the improbability of positivism through a
fictional hypothetical case and corresponding opinions by five fictional judges,
each examining the case from a different legal principle).
11. Id. at 617-18.
12. Id. at 618.
13. Id.
http://digitalcommons.pace.edu/plr/vol34/iss2/2
2
564
PACE LAW REVIEW
[Vol. 34:2
The statute reads, with no exceptions, “[w]hoever shall willfully
take the life of another shall be punished by death.”15
And yet, on appeal, the judges divide. They disagree about
what the law requires.16 They do not disagree about what the
law ought to be—all agree that a murder conviction and death
for the survivors would be a tragic result—but some think the
law mandates punishment,17 others forgiveness,18 others
nothing at all.19 The judges do not disagree about the facts, the
words of the statute, or all the cases that have come before;
that is, they are not engaged in a factual or empirical dispute
about what mutually agreed upon authoritative sources say.20
They are instead engaged in what Ronald Dworkin famously
called “theoretical disagreement.”21 They disagree about which
sources they are meant to look to in determining what the law
is.
According to legal positivism this sort of disagreement is
impossible.22 At most one—and possibly none—of the judges in
14. Id.
15. Id. at 619.
16. See id. at 616-19 (Truepenny, C.J.) (holding the men guilty by
arguing that the Chief Executive will surely issue them a pardon, thus
allowing the judges to respect and uphold the law without guilty consciences
for putting the defendants to death); Fuller, supra note 10, at 620-26 (Foster,
J.) (holding that there is no law to apply, because the men were not within
the jurisdiction of the realm at the time of the killing, and through arguing
that they are emphatically not guilty by reason of necessity, their convictions
should be set aside); id. at 626-31 (Tatting, J.) (holding that he cannot
discover a single appropriate course for resolving the case—finding it
intellectually unsound to excuse the men for murder, but evil to put them to
death, and therefore recusing himself from the case); id. at 631-37 (Keen, J.)
(holding that regardless of executive clemency, the words of the statute are
unambiguous, thus resolving the matter irrespective of the court’s
sympathies, and that it was inappropriate for Truepenny even to mention
them); id. at 637-44 (Handy, J.) (arguing that this is clearly an extraordinary
case, calling for an exercise of discretion and judgment by the court that is
well outside the bounds of any case the law was ever intended to cover, and
that it is quite simple to conclude that common sense and substantial justice
favor a judicial declaration of the defendants’ innocence).
17. Id. at 616-19 (Truepenny, C.J.); id. at 631-37 (Keen, J.).
18. Fuller, supra note 10, at 620-26 (Foster, J.).
19. Id. at 625-31 (Tatting, J.); id. at 637-44 (Handy, J.).
20. See DWORKIN, LAW’S EMPIRE, supra note 6, at 5.
21. Id. at 6.
22. See Leiter, Explaining Theoretical Disagreement, supra note 2, at
1216-20; Leiter, The Radicalism of Legal Positivism, supra note 2, at 167
3
2014]
THE IMPROBABILITY OF POSITIVISM
565
the case of the Speluncean Explorers is correct about what the
law requires.23 Any dispute about whether or not killing out of
necessity is or is not the law is unintelligible in the absence of a
convergent practice among officials establishing the criteria for
definitively deciding this “proposition[] of law.”24 There may be
no fixed practice, but in that case, there is no law to apply and
judges must engage in the unavoidable exercise of discretion.
To say otherwise is to make a primitive mistake about the
nature of law itself.
The disagreement on display in Lon Fuller’s famous
hypothetical
case—known
commonly
as
“theoretical
disagreement,”25 but also as disagreement about the “grounds
of law,”26 disagreement about the criteria of legal validity, or
disagreement about the “content” of the Rule of Recognition27—
is both recurrent in our legal discourse28 and defies Positivism’s
most basic assumptions about the nature of that discourse.29
For nearly three decades, Positivism has escaped without
confronting the enormous challenge that the possibility of
legitimate theoretical disagreement poses to the foundations of
that theory.30 Professor Scott Shapiro recently called
Positivism’s inability to satisfactorily account for the
persistence of this kind of disagreement as “the most serious
threat facing legal positivism at the beginning of the twenty-
(“[Positivism] claims only that when law exists in some society, we find a
social rule that is the Rule of Recognition.”).
23. See Kenneth Einar Himma, Substance and Method in Conceptual
Jurisprudence and Legal Theory, 88 VA. L. REV. 1119, 1159 (2002).
24. See DWORKIN, LAW’S EMPIRE, supra note 6, at 4 (internal quotation
marks omitted) (“Let us call ‘propositions of law’ all the various statements
and claims people make about what the law allows or prohibits or entitles
them to have.”); see also Himma, supra note 22, at 1215-18.
25. Smith, supra note 7, at 636.
26. SCOTT J. SHAPIRO, LEGALITY 285 (2011) [hereinafter SHAPIRO,
LEGALITY].
27. Id.
28. Id. at 283 (“pervasive”); id. at 291 (“a truism about legal practice”).
29. Id. at 291-92 (“[L]egal positivism, at least as it is currently
conceived, cannot make sense of this truism and hence is incapable of
accounting for a central feature of legal practice.”).
30. Scott J. Shapiro, The “Hart-Dworkin” Debate: A Short Guide for the
Perplexed, in RONALD DWORKIN 22, 50 (Arthur Ripstein ed., 2007) [hereinafter
Shapiro, The “Hart-Dworkin” Debate].
http://digitalcommons.pace.edu/plr/vol34/iss2/2
4
566
PACE LAW REVIEW
[Vol. 34:2
first century.”31 Only one robust defense of legal Positivism has
been marshaled, and it frankly and freely admits that for
Positivism to survive, theoretical disagreements must be
fundamentally misguided, incoherent, disingenuous, or
unintelligible.32
This Article seeks to explain why this notion is highly
unconvincing, and why this seemingly minor defect in the
foundations of Positivism—its inability to account for
theoretical disagreements—makes it improbable that
Positivism offers an adequate descriptive account of the nature
of law. Not impossible, but unlikely. This Article also endeavors
to outline why this deficiency is so immensely important. To
accept the validity of theoretical disagreement is to accept that
the very concept of law must incorporate deeper principles
embedded in the moral and political culture in which that law
resides, an outcome that threatens to tear down legal
Positivism’s conceptual cathedral.
Part II of this Article explains legal Positivism’s core claim
about the existence and nature of the “Rule of Recognition,”
and describes the puzzling persistence of disagreements that
seem to flatly contradict Positivism’s most basic claims about
it. Part III briefly explains unreconstructed legal Positivism’s
contemporary answer to this critique.33 Part IV explains why
these defenses require us to believe that there is widespread
repetition of simple errors and rudimentary mistakes among
some of the legal system’s most skillful and important actors—
an outcome that, while certainly possible, is highly improbable.
The Article concludes with an explanation as to why the
fall of the Rule of Recognition is so devastating to the Positivist
program. Acceptance of the possibility of genuine theoretical
disagreement means that what the law is at any given moment
must be justified by the political morality that makes it
31. Id.
32. See Leiter, Explaining Theoretical Disagreement, supra note 2, at
1215-18.
33. See generally H.L.A. HART, THE CONCEPT OF LAW (2d ed. 1994)
[hereinafter HART, CONCEPT OF LAW]. “[U]nreconstructed” means either
Hartian Positivism, as set forth in H.L.A. Hart’s masterwork, The Concept of
Law, or the writings and views of legal philosophers who still ascribe to the
core tenets of that theory but offer no alternative explanation or justification
for the existence of this kind of disagreement.
5
2014]
THE IMPROBABILITY OF POSITIVISM
567
legitimate. In other words, no proposition of law can be decided
without potential recourse to its merits. Rather than contentfree and morally neutral, if theoretical disagreement exists,
law is always subject to deliberation and its validity is always
subject to its conformance with more basic principles of justice
and political morality in the society of which it is a part.
II. The Rule of Recognition and the Existence of “Theoretical
Disagreement”
Legal positivism aims to be descriptive and morally
neutral.34 As an empirical and analytical theory, if it is to be
judged, it is to be judged by the fit of its account with the
institutions and social practices that create and enforce the
law.35 For the most part it fits tremendously well. Positivism
straightforwardly locates the foundations of legal authority,36
explains how individuals predict legal consequences,37 draws
clear and definite lines between what is and isn’t law, and
illuminates why unjust and immoral laws can still be “law.”38
Since these are all important aspects of the law as we observe
it, Positivism gracefully explains the majority of our
experience.39
34. Andrei Marmor, Legal Positivism: Still Descriptive and Morally
Neutral, in LAW IN THE AGE OF PLURALISM 125, 125 (2007); see Joseph Raz,
Two Views of the Nature of the Theory of Law: A Partial Comparison, in
HART’S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO ‘THE CONCEPT OF LAW’ 1, 1
(Jules Coleman ed., 2001); Frederick Schauer & Virginia J. Wise, Legal
Positivism as Legal Information, 82 CORNELL L. REV. 1080, 1088 (1997); see
also HART, CONCEPT OF LAW, supra note 33, at 239.
35. See Schauer & Wise, supra note 34, at 1082 (“[T]he truth or falsity of
legal positivism has as its most substantial component a claim that is more
empirical than conceptual.”).
36. See, e.g., Scott J. Shapiro, On Hart’s Way Out, in HART’S POSTSCRIPT:
ESSAYS ON THE POSTSCRIPT TO ‘THE CONCEPT OF LAW’ 149, 153-56 (Jules
Coleman ed., 2001).
37. See, e.g., id. at 187. See generally Scott J. Shapiro, The Bad Man and
the Internal Point of View, in THE PATH OF THE LAW AND ITS INFLUENCE: THE
LEGACY OF OLIVER WENDELL HOLMES, JR. 197, 200-04 (Steven J. Burton ed.,
2000).
38. HART, CONCEPT OF LAW, supra note 33, at 207-12.
39. See id. at 98-99; see also Scott J. Shapiro, What is the Rule of
Recognition (and Does it Exist)?, in THE RULE OF RECOGNITION AND THE U.S.
CONSTITUTION 235, 242-45 (Matthew D. Adler & Kenneth Einar Himma eds.,
2009).
http://digitalcommons.pace.edu/plr/vol34/iss2/2
6
568
PACE LAW REVIEW
[Vol. 34:2
Legal positivism rests upon the “Rule of Recognition”40—a
master norm, derivable from the practice of officials, dictating
the criteria of legal validity.41 According to Positivism, the Rule
of Recognition is the norm shared by the officials in a legal
system that sets out the criteria for the validity of legal rules.42
This norm is not itself a legal rule, but instead is a social
convention, what H.L.A. Hart termed a “social rule.”43 The Rule
of Recognition is the bedrock of a legal system, because it
makes all other legal rules possible without needing to rely on
other legal rules to ground its own authority (a problem that
would lead to a significant chicken-egg paradox).44
According to Positivists, the Rule of Recognition is
constituted entirely and merely by the practice of officials in a
legal system.45 As such, the Rule of Recognition is content
free—it has no “necessary” nexus with morality, justice, or
fairness.46 It is simply the label we use to describe the rule
legal officials use to decide what they are obligated to do when
deciding legal questions. It can therefore be determined
empirically. In fact, it must be determined empirically.47 One
resolves legal questions by looking to the Rule of Recognition to
determine what the officials who apply the relevant law will do,
because the Rule of Recognition is merely the description of
what legal officials in a legal system feel themselves obliged to
do as a matter of convergent social practice.48
The account so far is quite straightforward, almost
tautologically so. Looking to what judges and other officials in
the legal system think they are obligated to do when faced with
a particular set of facts giving rise to a legal question is pretty
much
exactly
how
most
people—consciously
and
unconsciously—determine what the law is. There is only one
40. See id.; HART, CONCEPT OF LAW, supra note 33, at 100; see also
JOSEPH RAZ, PRACTICAL REASON AND NORMS 146 (1999).
41. HART, CONCEPT OF LAW, supra note 33, at 94-95.
42. Id. at 106.
43. Id. at 109.
44. SHAPIRO, LEGALITY, supra note 26, at 84.
45. See HART, CONCEPT OF LAW, supra note 33, at 91.
46. See, e.g., Scott J. Shapiro, Was Inclusive Legal Positivism Founded
on a Mistake?, 22 RATIO JURIS 326, 327 (2009).
47. See SHAPIRO, LEGALITY, supra note 26, at 290-91.
48. See HART, CONCEPT OF LAW, supra note 33, at 97.
7
2014]
THE IMPROBABILITY OF POSITIVISM
569
problem with this account, which is that judges frequently
disagree about what they are obligated to do.49 That is, judges
persistently engage in what Ronald Dworkin called “theoretical
disagreement about the grounds of law.”50 They disagree about
the criteria of legal validity.51
This is an important insight because according to
Positivists, the Rule of Recognition provides the criteria for
determining when something is against the law. To answer a
question about what the law is, one looks to the Rule of
Recognition and deduces the answer from it. There is no room,
in legal Positivism, for anything more than superficial
disagreement about what the law is. It might be unclear what
the Rule of Recognition demands, but its content is not
something that is open to debate because the very idea of
debating the content of a norm derived from the practice of
officials is incoherent—akin to debating whether gravity exists.
Whether one believes or refuses to believe in it, gravity will
continue to persist. Likewise, according to Positivists, whether
one chooses to agree with or disagree with the content of the
Rule of Recognition, it provides the criteria of legal validity.
But this account falls short if we accept that it is possible
to disagree about the very notion of what makes something the
law. If one accepts the modest proposition that we might not all
share the same ideas about what makes something “against
the law”—that is, that we might legitimately disagree about
the grounds of law itself without thereby giving up the claim
that there can still be binding legal authority—it then becomes
difficult to accept the notion that something is “law” only if it
meets the test set forth in a Rule of Recognition.
Theoretical disagreement poses an overwhelming
challenge to legal Positivism because in hard cases giving rise
to such disagreements, the traditional content- and value-free
49. Many of these disagreements are interpretive and abstract,
reflecting conflicts over what the Constitution commands judges to do, or
what statutes require, when properly interpreted. See DWORKIN, LAW’S
EMPIRE, supra note 6, at 16; see also SHAPIRO, LEGALITY, supra note 26, at 283
(calling theoretical disagreement a kind of disagreement “legal reasoners
frequently have . . .”).
50. DWORKIN, LAW’S EMPIRE, supra note 6, at 6.
51. See Leiter, Explaining Theoretical Disagreement, supra note 2, at
1217.
http://digitalcommons.pace.edu/plr/vol34/iss2/2
8
570
PACE LAW REVIEW
[Vol. 34:2
nature of the Rule of Recognition no longer sets the criteria of
legal validity. Judges and lawyers continue to argue what the
law is even though according to legal Positivism without the
Rule of Recognition to guide them, this argument is incoherent.
Yet, we observe theoretical disagreement constantly.
Judges argue with each other as if there is law to apply,52 as if
the Constitution commands that a non-marital father receive
no parental rights, not as if it ought to command that53—even
though there is no established convention upon which to
draw.54 According to Positivism these judges are not applying
law, they are making it up, because the panoptic Rule of
Recognition is silent as to how these cases should come out.55
Legal Positivists have responded to the rhetorical problem
hard cases pose—wherein judges appear to strongly disagree
about the validity and authoritativeness of competing sources,
often in morally freighted terms—in two unsatisfying ways.56
One school has taken the route of “exclusive” legal Positivism,
and argues that the Rule of Recognition simply demands the
application of extralegal norms in hard cases.57 In other words,
these Positivists argue that judges can decide hard cases by
looking to moral criteria, but when they do, they do not apply
the law—they exercise discretion.58 A second school, “inclusive”
52. See DWORKIN, LAW’S EMPIRE, supra note 6, at 37-43.
53. See Michael H. v. Gerald D., 491 U.S. 110, 127-28 n.6 (1989). In
Michael H., the Supreme Court famously sparred over the “generality,” with
which legal principles should be incorporated into claims of constitutional
liberty. Id. at 142. One side asserted that relevant historical traditions were
those specifically relating to the rights of an adulterous natural father, and
the other, into whether parenthood was an interest that had been historically
protected, id. at 127-28 n.6.
54. See DWORKIN, LAW’S EMPIRE, supra note 6, at 37.
55. See id.; see also Leiter, Explaining Theoretical Disagreement, supra
note 2, at 1223 (“They write as if there is a fact of the matter about what the
law is, even though they disagree about the criteria that fix what the law
is.”).
56. See SHAPIRO, LEGALITY, supra note 26, at 289. For a compelling
account of why one might call these rehabilitations “unsatisfying,” see
generally RONALD DWORKIN, JUSTICE IN ROBES 189-216 (2006) [hereinafter
DWORKIN, JUSTICE IN ROBES] For the proposition that this is, indeed, how
positivists respond, see SHAPIRO, LEGALITY supra note 26, at 289.
57. SHAPIRO, LEGALITY, supra note 26, at 289.
58. John Gardner, Legal Positivism: 5 1/2 Myths, 46 AM. J. JURIS. 199,
201 (2001).
9
2014]
THE IMPROBABILITY OF POSITIVISM
571
legal Positivists, argues that the Rule of Recognition can make
recourse to morality part of the law, and as such judges are
occasionally free to treat moral truths as legally relevant facts
(for instance, in hard cases).59 These Positivists make the Rule
of Recognition so abstract that the legal obligations judges
adhere to fit into a set of expansive conventions (about as
opaque and indeterminate, one imagines, as the kōans of
equity).60
On the one hand, to an exclusive legal Positivist, the
judges in the case of the Speluncean explorers are engaged in a
coherent argument over how to decide the case but not because
the law dictates one answer or another. If the law dictated one
answer or another, the judges would agree on it, and decide the
case according to it. Rather than arguing over how to apply
law, the judges in the case of the Sepluncean explorers are
arguing over how to appropriately exercise their discretion
where the law furnishes no answer. On the other hand, to an
inclusive legal Positivist, the judges in the case of the
Speluncean explorers might actually be arguing over the
proper application of law, but if they are, they are engaged in
an argument about empirical fact, not about law. The law is
not really in dispute. The facts are. The judges in the case of
the Speluncean explorers are engaged in a disagreement about
how to properly apply the law to the moral facts before the
court.
Neither of these theories seems to match what the judges
in the case of the Speluncean explorers actually say. One can
easily see that they do not believe themselves to be engaged in
disagreements of either of these kinds. Some of the judges seem
to think the law squarely dictates the outcome of the case while
others seem to think it does not dictate an answer of any kind.
Some respond to the belief that there is no law to apply by
contending that the very non-existence of law deprives them of
the authority to act. Others believe it is a license to make a
decision consistent with the dictates of justice. But the judges
in the case do not see themselves as engaged in an argument
about the exercise of discretion (some think the law clearly
59. SHAPIRO, LEGALITY, supra note 26, at 289
60. Id.
http://digitalcommons.pace.edu/plr/vol34/iss2/2
10
572
PACE LAW REVIEW
[Vol. 34:2
dictates the outcome and there is no discretion), and they also
do not see themselves as engaged purely in an argument about
the proper application of the law to the facts (some think there
is no law to apply and that the exercise of discretion is
warranted).
This is the problem theoretical disagreement poses to legal
Positivism. Positivism can explain away why judges often seem
to speak in the language of morality when arguing about law
without giving up the claim that law and morals are separate.
But Positivism lacks any similarly expedient means of
dismissing systematic interpretive disagreements, such as the
longstanding conflicts between Textualists and Purposivists.61
Positivism cannot preserve the face value of disagreements
about how to determine when a particular command or norm
has the force of law—disagreements, that is, about what is
authoritative and who has authority. Since these are not
linguistic or semantic conflicts,62 and since both exclusive and
inclusive legal positivists still ascribe to the “core” of legal
Positivism—that the Rule of Recognition, established by the
practice of officials, decides the criteria of legal validity—the
very existence of longstanding, irreconcilable, and legally
decisive interpretive disagreements is impossible unless one of
the two sides of the debate in any case giving rise to theoretical
disagreement is fundamentally wrong (the “Error” thesis) or
one side is being disingenuous (the “Disingenuity” thesis).63
The next section explains how contemporary Positivism has
responded to this charge. It has been rather surprising.
III. How Positivists Explain Theoretical Disagreement
Unreconstructed Positivists who have confronted the
problem of theoretical disagreement (most have overlooked it64)
concede that there are only two explanations for the
persistence of such disagreements in legal argument.65 Either
legal reasoners who engage in theoretical disagreements are
61.
62.
63.
64.
65.
Id.
DWORKIN, LAW’S EMPIRE, supra note 6, at 37-43.
SHAPIRO, LEGALITY, supra note 26, at 290-92.
Shapiro, The “Hart-Dworkin” Debate, supra note 30, at 50.
Leiter, Explaining Theoretical Disagreement, supra note 2, at 1223.
11
2014]
THE IMPROBABILITY OF POSITIVISM
573
mistaken about the criteria of legal validity—that is, they are
wrong, or in error66—or are aware of the proper criteria (or are
aware that there exist no proper criteria) but nonetheless
persist in making arguments as if there were binding law to
apply—that is, they are being dishonest or disingenuous.67
Nonetheless, Positivists hold, even though judges who
argue about the proper approach to statutory interpretation or
the proper way to interpret the Constitution are either in Error
or being Disingenuous about what the law requires, this should
not deeply concern us.68 Notwithstanding Ronald Dworkin’s
vociferation that law “is not a grotesque joke”69 and Professor
Scott Shapiro’s acclamation that if Positivists “wish to deny the
existence of theoretical legal disagreements, they are forced to
say that legal scholars are so confused about the practice they
study
that
they
routinely
engage
in
incoherent
argumentation”70—such disagreement is indeed impossible
according to Positivists.71 Fortunately, they counter, both the
Error and Disingenuity theses, though precisely what we see
when we see so-called theoretical disagreements occur, are no
big deal.72
In support of the proposition that these disagreements are
no big deal, they take two argumentative tacks. First, they
contend that Error and Disingenuity are far likelier than one
would initially suspect.73 Errors are a common occurrence in
any sufficiently complex field.74 “Religious discourse is our
paradigm case of an ongoing discourse that nonetheless invites
Error
Theoretic
treatment,
since
its
persistence
(notwithstanding its systematic falsity) seems explicable by the
powerful psychological satisfactions it affords sincere
participants.”75 Likewise, Disingenuity is common to the
66. Id. at 1224.
67. Id.
68. Id. at 1247-49.
69. DWORKIN, LAW’S EMPIRE, supra note 6, at 44.
70. Shapiro, The “Hart-Dworkin” Debate, supra note 30, at 43.
71. Leiter, Explaining Theoretical Disagreement, supra note 2, at 1223.
72. See Smith, supra note 7, at 659.
73. Id.
74. Himma, supra note 23, at 1159; Leiter, Explaining Theoretical
Disagreement, supra note 2, at 1225.
75. Leiter, Explaining Theoretical Disagreement, supra note 2, at 1225-
http://digitalcommons.pace.edu/plr/vol34/iss2/2
12
574
PACE LAW REVIEW
[Vol. 34:2
practice of professionals. Lawyers often use specialized
language, terms, and rituals even though they are divorced
from the meanings that might be ascribed to them by laymen.76
Legal fictions are the paradigm case here. In law, terms of art,
forms of action, and modes of proceeding are often treated
idiosyncratically in order to effect outcomes that the legal
system cannot fashion honestly.77
Second, “[b]orrowing a bit loosely from the philosophical
literature that examines the rationality of belief and theory
choice in the sciences,”78 Positivists contend that because legal
Positivism simply and elegantly explains an enormous range of
our experience, it is likelier to be true than alternative
accounts of the concept of law.79 Offering “three familiar
theoretical desiderata often thought relevant” to deciding
between competing theories in the sciences, they offer
Positivism’s superior simplicity, consilience, and conservatism
over competing accounts as another point in its favor.80
The final section of this Article takes up each of these
strands of argument and shows why they are deeply
implausible.
IV. The Improbability of Positivism
This final section briefly outlines why the two accounts of
theoretical disagreement offered by legal positivists—”the
disingenuity and error are common” response and the
“positivism better fits and justifies our concept of law”
response—are both highly unlikely to save Positivism.
At the outset, the “positivism better fits and justifies our
concept of law” response to the problem of theoretical
disagreement is a non-starter if accounting for theoretical
disagreement is a necessary condition of any adequate account
of the nature of law. There are, after all, an infinite number of
possible explanatory accounts that we might proffer to explain
26.
76.
77.
78.
79.
80.
Id. at 1238-39.
See LON FULLER, LEGAL FICTIONS 9 (1967).
Leiter, Explaining Theoretical Disagreement, supra note 2, at 1239.
Id. at 1239.
Id. at 1239-40.
13
2014]
THE IMPROBABILITY OF POSITIVISM
575
the world and our experience in it.81 In choosing between them
we first eliminate all those theories that simply categorically
fail to account for necessary conditions—that is, that are false.
Milton Friedman once offered the example of the rational,
energy-density maximizing manner in which leaves seem to
arrange themselves on trees.82 One hypothesis would be that
the arrangement is volitional, another that it is the product of
chance.83 The most reliable test for determining that these
hypotheses do not hold, is to falsify them—to find systematic
shortcomings that render these hypotheses highly improbable,
if not impossible. If theoretical disagreement is possible, that
fact alone would falsify Positivism, regardless of Positivism’s
truthiness with respect to the remainder of our experience.
This makes the argument that theoretical disagreement is
erroneous because it is inconsistent with Positivism backward.
Such an argument seems to hold that where reality and theory
diverge it is reality that should give way. This cannot be right.
Legal positivism has no a priori claim to being more correct
than any other account of the nature of law, save that it fits our
understanding of law better than other accounts have. But the
argument that Positivism is a better theory than other theories
because it better explains more of our experience of legal
practice has no impact on the likely validity of theoretical
disagreement. The supposed archetypical case—religious
disagreement—exemplifies the point. When one’s baseline is
atheism, religious discourse can come across as infected with
primitive errors. But they are not logical errors. Indeed, the
ordinary dictates of logic hold up just fine in theological
disputes. The problem for the atheist who judges theological
disputes resides in his belief in religion’s faulty premises. But
since the premises of atheism are neither more nor less
provable than those of (most) religious faith, it is impossible for
atheists to make claims about the likelihood that debates are
any more erroneous than debates about other phenomena, for
81. Milton Friedman, The Methodology of Positive Economics, in ESSAYS
IN POSITIVE ECONOMICS 1, 9 (1953).
82. See id. at 12.
83. Id. at 12-13.
84. See Richard Posner, The Problematics of Moral and Legal Theory,
111 HARV. L. REV. 1637, 1653-54 (1998).
http://digitalcommons.pace.edu/plr/vol34/iss2/2
14
576
PACE LAW REVIEW
[Vol. 34:2
which no empirical evidence has yet been disclosed such as
disputes about virtue, ethics, justice, and morals.84
As to empirical evidence, the weight of observation is
decidedly against Positivism. Indeed, the “error is common
account” of theoretical disagreement suffers from the most
elementary of problems, which is that it seems to call into
question the very notion that one can argue meaningfully over
what the law is, even though that seems to be all that judges
do. Positivism declares that the only kinds of disputes about
what the law is are either empirical or imaginary. That is, only
two kinds of questions ever come before the Supreme Court:
empirical disputes (i.e. “Given the evidence we have, was X in
fact the law on this day”) and invitations to legislate dressed up
as disputes over what the law is (i.e. “What should the law be
when facts like these arise?”). By declaring these the only two
kinds of disputes that can arise—even though none of the
Questions Presented to the Supreme Court are ever fashioned
in a manner that reflects either of these—Positivism must hold
out that our judicial institutions, from the highest to the
lowest, are fundamentally mistaken about what it is our
society has instituted to them to do.85
The argument that these observations are illusory because
“disingenuity explains theoretical disagreement” is subject to
the same critique.86 To argue that disingenuous, specialized or
unartful language explains why we witness what looks like
theoretical disagreement is just to reformulate the error
argument in another guise.87 The Disingenuity account of
theoretical disagreement differs only from the Error account in
postulating that those who engage in theoretical disagreement
realize it is a farce.88 That is, they are aware that the
arguments they are making and responding to are not
arguments about what the law is, but rather about what the
law should be. But Dworkin, quite appropriately, maintained
85. See Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically
the province and duty of the judicial department to say what the law is.”).
86. See generally Leiter, Explaining Theoretical Disagreement, supra
note 2.
87. See generally id.
88. See generally id.
15
2014]
THE IMPROBABILITY OF POSITIVISM
577
that if legal officials were being disingenuous their opponents
would say so, if only, at the very least, to undercut such
arguments.89 Since they do not, it must be the case that they do
not believe other judges are behaving disingenuously. The
Positivist’s response to this is to bring up legal fictions, and
argue that judges systematically conflate the is-ought
distinction, but that they know deep down they are really
making arguments about what the law ought to be, and that
their statements should not be taken at face value.90 A better
counterargument to the Disingenuity account, first voiced by
Professor Scott Shapiro, is that if it were true, law professors,
judges, lawyers, and pretty much every member of the legal
system trained in the practice of law would know that these
fictive theoretical disagreements were fictions.91 Legal fictions
work because no one believes them.92 Legal fictions are not
meant to deceive.93 They are the specialized language of a
practice—much like mathematical symbols and biochemical
charts are part of the specialized language of science.94 But
ordinary lawyers, judges, and law professors are not
systematically aware that judges are engaging in disingenuous
theoretical disagreement.95 As such, the only explanation for
their naïve credulity must be that they are fundamentally in
error about the possibility of theoretical disagreement.
The foregoing points taken together establish why
89. See DWORKIN, LAW’S EMPIRE, supra note 6, at 37-38. Dworkin made a
further argument, though one that is not quite as compelling: that judges
often argue that a proposition of law must be decided in a certain way even
though the judge personally deeply opposes that outcome. Id. at 38. The
weakness in this argument lies in the fact that we already suspect the judge
to be acting disingenuously in asserting this is what the law is even though
he knows this is a lie. Nothing would better conceal this deception than a
false expression that he disagrees with the result the law “requires” him to
reach.
90. Leiter, Explaining Theoretical Disagreement, supra note 2, at 1237.
91. See generally id.
92. FULLER, supra note 77 at 6.
93. Id.
94. For disingenuity accounts to truly hold, disingenuous theoretical
arguments would have to possess the added dimension of a knowing intention
to deceive, a relevant fact with which Positivists who have responded to the
possibility of theoretical disagreement have not contended. See Leiter,
Explaining Theoretical Disagreement, supra note 2, at 1238.
95. See Shapiro, The “Hart-Dworkin” Debate, supra note 30, at 42-43.
http://digitalcommons.pace.edu/plr/vol34/iss2/2
16
578
PACE LAW REVIEW
[Vol. 34:2
Positivism, as it is currently comprised, is so improbable.
Recall that Positivists contend that theoretical disagreement is
fundamentally in error or disingenuous because arguing about
the criteria of legal validity is equivalent to arguing about some
fixture of reality that is unaffected by deliberation—be it the
nature of God, the velocity of light, or the existence of gravity.
None of these phenomena can be changed by disagreements
about them. Their existence, validity, and content are fixed by
facts unaffected by belief. So too, according to Positivists, the
criteria of legal validity are unaffected by disagreement about
them. The law is fixed by the Rule of Recognition, whether
judges think they can engage in disagreement about it or not.
The Positivist’s claim is a simple one: disagreement about the
content of the Rule of Recognition does not, because it cannot,
change the content of the Rule of Recognition.
But consider the analytical quandary legal Positivists have
argued themselves into. They argue that the Rule of
Recognition is fixed by the practice of officials in the legal
system, but deny that a practice widely shared by those
officials (theoretical disagreements) counts toward determining
its content.
Three possibilities flow from this apparent paradox. On the
one, hand legal Positivism could be wrong about theoretical
disagreement because theoretical disagreement can exist, and
the account of the nature of law that Positivism offers is itself
wrong or incomplete. What is and isn’t law is simply not
decided by looking to a Rule of Recognition. This argument
flips the Positivist’s contention on its head and argues that
Positivists—who would require that the criteria of legal
validity be fixed by a Rule of Recognition—are the ones who are
fundamentally in error. If this is true, then theoretical
disagreement is possible because Positivism simply fails to
properly describe the universe (much like the theory of
Phlogiston misdescribes the nature of reality). If this is so, then
we must construct an entirely new account of the nature of law,
one that validates theoretical disagreement.
On the other hand, legal Positivism could be correct
without emendation, in which case our concept of law can give
no account of disagreements that appear to be systematic,
17
2014]
THE IMPROBABILITY OF POSITIVISM
579
decisive, and widespread.96
On the other hand, one might argue that legal Positivism
is mostly correct but that a kind of “reconstructed” Positivism
can account for theoretical disagreements. A not insignificant
number of Positivists appear to take this view. They argue that
theoretical disagreement can be brought within the Rule of
Recognition unproblematically, and that therefore the
argument from theoretical disagreement is trifling. Some
appear to believe that Hart himself accounted for the
possibility of theoretical disagreement by explaining that the
content of the Rule of Recognition would be fixed more or less
by accident—by each legal official creating it accidentally
through her own attempts to identify its content and follow it.
Superficially, a reconstructed Positivism that simply
brings theoretical disagreement within the Rule of Recognition
sounds enticing. The logic of a legal Positivism that gives way
to theoretical disagreements is easy enough to grasp. After all,
the core tenet of Positivism rests on the belief that an extralegal norm (the Rule of Recognition) establishes the legal
obligations legal officials perceive themselves to have. If legal
officials also believe that theoretical disagreements are a part
of establishing their obligations, then theoretical disagreement
must be possible. The very existence of theoretical
disagreements that legal officials believe to be genuine would
make it logically impossible for those disagreements to be
erroneous, because these purportedly erroneous disagreements
decide propositions of law.97 As such, part of the practice of
looking to the Rule of Recognition would be recognizing that no
one can perfectly identify its content, and to the degree that
fuzziness in determining its content is accepted as part of the
Rule of Recognition, the possibility of theoretical disagreement
96. Moreover, there is no way to use legal rules to overcome interpretive
conflicts because there is always a stage of interpretation at which the
interpreter must decide for him or herself how to engage in proper
interpretation of the initial legal command. See, e.g., Andrew Tutt, Comment,
Interpretation Step Zero: A Limit on Methodology as “Law,” 122 YALE L.J.
2055, 2057-58 (2013).
97. One imagines this is why religious adherents persistently engage in
their fundamentally “erroneous” discourse as well—if it results in converts to
the faith, or creates a sense of religious obligation in a community, it seems
odd to call it erroneous or impossible.
http://digitalcommons.pace.edu/plr/vol34/iss2/2
18
580
PACE LAW REVIEW
[Vol. 34:2
would form part of the criteria for determining legal validity. In
other words, whether theoretical disputes would otherwise
fundamentally be in error is ultimately irrelevant if belief
about the validity of such disputes were permitted to itself
constitute an element of the Rule of Recognition. Then,
whether the officials in a particular jurisdiction believe
theoretical disagreements are possible is the only relevant
means of deciding the validity of theoretical disagreements.
But there is a serious circularity problem that arises if the
Rule of Recognition itself allows for disagreement about its
content. The Rule, as a Rule, becomes irrelevant. It becomes
akin to a Rule that says “one may look to other Rules, none of
which can be identified a priori, to decide propositions of law.”
This is problematic because this kind of “Pickwickian
positivism”98—that survives only by acceding to the belief
among legal officials that theoretical disagreement is
possible—is no different from a theory that rejects Positivism.99
To see why, consider an argument between two judges over
whether the law is X or Y. Suppose Official A is a Positivist,
and insists that the criteria of legal validity are set by the
practices of officials, and looking to the practices of officials,
concludes that the law is X. In a version of Positivism that
accepts the possibility of theoretical disagreement, this
official’s views would only be one among many. Other officials,
also Positivists one imagines, though it would not matter if
they were not, could just insist that the Official A—along with
a majority of other officials—had misidentified the content of
the Rule of Recognition and that the law is actually Y. Official
A’s only recourse to the argument that he has misidentified the
content of the Rule of Recognition is to point out that the
majority of officials agree with his view. At best, recourse to the
practices of officials becomes one justification among many for
saying the law is X instead of Y, but it is no better or worse
than other justifications that one might proffer. The Rule
ceases to be a Rule at all, because no one in any meaningful
98. DWORKIN, JUSTICE IN ROBES, supra note 56, at 188-198 (noting that
such Pickwickian Positivism robs Positivism of any of the special content that
made Positivism’s unique descriptive account of the concept of law useful or
theoretically interesting).
99. Id.
19
2014]
THE IMPROBABILITY OF POSITIVISM
581
sense “follows” it. It becomes a description of what officials do
in fact, rather than a way of picking out which norms are
legally valid.
In Pickwickian Positivism, in other words, the Rule of
Recognition, as a rule for recognizing which rules are legal
rules, is no longer a way of recognizing anything. “Positivism”
as a concept, loses all but the most pyrrhic meaning. Yes it
could still describe the concept of law at its most threadbare
and sterile, but its impact on our understanding of law would
be negligible. The Positivist world would be indistinguishable
from a world in which we took natural law or some other
theory as the underlying method of determining the criteria of
legal validity. One would never be able to tell whether officials
actually followed a social rule in deciding propositions of law,
because Positivism’s Rule of Recognition would never be
identifiable, even if an overwhelming majority of officials took a
particular view about its content.
It is likely because they recognize this problem that
unreconstructed Positivists adopt the view that Positivism
cannot be squared with theoretical disagreement. Where
theoretical disagreements arise, there is either no decisive law
on the issue or at least one of the parties to the disagreement is
simply wrong about the content of the Rule of Recognition. In
this way, in unreconstructed legal Positivism theoretical
disagreements do not contribute to the content of the Rule of
Recognition. Rather, where theoretical disagreements arise,
the Rule of Recognition is unaffected. There is either no law to
apply because if there were, legal officials would use the Rule
of Recognition to identify it, or, alternatively, one of the
officials is wrong about the Rule because the practice of
officials has already settled the question and the official
engaging in theoretical disagreement is in error about it.
But the extreme difficulty for the view espoused by
unreconstructed legal Positivists is that the existence among
even a subset of officials of a belief in the validity of theoretical
disagreement on some issue effectively forces other officials to
engage in theoretical disagreement about it, thereby unsettling
the Rule of Recognition even if that subset of officials are in
error. After all, insistence by even some officials that the
criteria of legal validity should be (1), (2), (3) rather than (x),
http://digitalcommons.pace.edu/plr/vol34/iss2/2
20
582
PACE LAW REVIEW
[Vol. 34:2
(y), (z) forces many or even all of the officials in the system to
either engage in theoretical disagreement on the issue or give
up the capacity for disagreement. This is because officials who
strongly believe the criteria are (1), (2), (3) rather than (x), (y),
(z) will render decisions on the basis of that belief, purporting
to apply law even though there is no law to apply or they are in
“error” about the criteria of legal validity.
Positivism ends up in an even worse position than it was
when it tried to become Pickwickian—engagement in
theoretical disagreements by even a subset of officials kills the
consensus necessary to create a meaningful social rule. Where
some officials stubbornly insist on rejecting the settled practice
of officials as a means of identifying the Rule of Recognition,
the only recourse for the Positivist who wishes to counter these
renegade officials is to justify recourse to the practice of
officials as a means of determining the criteria of legal validity.
That is, the only recourse is to justify Positivism.100 But to
justify positivism is to engage in theoretical disagreement,
thereby unsettling the Rule of Recognition.101
What all of this means, ultimately, is that in
unreconstructed Positivism’s account of the concept of law,
officials who argue that the law dictates an outcome other than
that accepted by the overwhelming majority of other legal
officials, hold a veto power over the content of the Rule of
Recognition. The minute these officials raise objections to the
grounds of law relied upon by the majority of other legal
officials, even if they are in the minority, what was once law
dictated by a social rule becomes not-law, because into
existence comes disagreement that forces theoretical
disagreement that unsettles the social rule. For this reason, a
Positivism that rejects theoretical disagreement is open to the
charges that it either leaves the Rule of Recognition
indeterminable or becomes a normative theory about how the
criteria of legal validity should be identified rather than a
descriptive theory about how they are in fact identified.
100. We saw this in the example of the case of the Speluncean Explorers
at the outset. See Owen M. Fiss, Objectivity and Interpretation, 34 STAN. L.
REV. 739, 753 (1982) (arguing that Positivism is undermined by the very fact
that those subject to its dictates require that it justify its claim to authority).
101. See Smith, supra note 7, at 660.
21
2014]
THE IMPROBABILITY OF POSITIVISM
583
There is an escape hatch available that would allow
Positivism to survive intact. For Positivism to survive intact,
we would need to be able to conclude that the vast majority of
legal officials know that theoretical disagreement is fictive and
ultimately hollow, even if they engage it. If legal officials
secretly know the content of the Rule of Recognition, and then
consciously deviate from it anyway, theoretical disagreement is
truly disingenuous and there is no issue. Otherwise the Rule of
Recognition is destined to be indeterminate because any
disagreement about it unsettles it (unreconstructed Positivism)
or irrelevant because disagreement about it is part of it in
which case Positivism does no theoretical work and cannot tell
us anything about what the criteria of legal validity are
(Pickwickian Positivism).
This is why Positivism is so improbable, because unless it
is broadened to the point that it tells us nothing useful,
theoretical disagreement unravels the idea that law is set by a
social rule. As such, at its simplest, unless legal officials’ know
theoretical disagreement is impossible, Positivism is either
useless as a theory or collapses from within. This is why it is so
improbable, and why the contemporary defenses of legal
Positivism have thus far proven so unsatisfactory.
V. Conclusion
The important question for the legal practitioner who cares
little for parlor debates is inevitably “so what?”
“So what if theoretical disagreement is possible?” he might
ask himself, “What difference could it possibly make one way or
the other?” The difference it makes is both trivial and
profound. It is trivial because acknowledging the existence and
validity of theoretical disagreement simply means that legal
philosophers would be willing to accept what lawyers already
know—that judges decide propositions of law by looking to
principles, consequences, morals, and justice to decide what the
law is.102 Judges do not simply look to a set of agreed-upon
102. See DWORKIN, LAW’S EMPIRE, supra note 6, at 10 (“The plain-fact
view is not. . . accepted by everyone. It is very popular among laymen and
academic writers whose specialty is the philosophy of law. But it is rejected in
the accounts thoughtful working lawyers and judges give of their work.”).
http://digitalcommons.pace.edu/plr/vol34/iss2/2
22
584
PACE LAW REVIEW
[Vol. 34:2
criteria set by an all-seeing Rule of Recognition and then argue
about whether or not those criteria are met in a particular
case.
The acceptance of the existence and possibility of
theoretical disagreement is profound, however, insofar as it
means that law is always subject to contestation on the merits
both from within a legal system and from without. Two
individuals can be subject to the same legal obligations—the
same “law”—and yet properly see this law as valid and fixed for
entirely different reasons and rationales. They see the same
law, but also different law. Every legal case is an opportunity
to call the law into question, and to require that legal officials
justify its legitimacy and validity, even if the outcome is all but
foreordained. The reason this is profound is because it imports
an enormous faith into our legal discourse—a faith that no
matter how insurmountably fixed or evil our “positive law” may
seem, if it transgresses too far, it is not law.103
More important than faith in the possibility of law,
however, is the way that theoretical disagreement
acknowledges that our legal discourse must demand more from
judges, lawyers, and scholars than categorization games and
debates over word-meanings. Theoretical disagreements mean
that the very notion the law is or must only be that which is
fixed by one set of criteria or another is subject to question in
deciding propositions of law. Thus, the existence and validity of
theoretical disagreement means that every theory of
interpretation, from Originalism to Textualism, from living
Constitutionalism to Purposivism, must justify itself to lay
claim to fixing the criteria of legal validity.104 Unreconstructed
103. See Somerset v. Stewart, [1772] 98 ENG. REP. 499, 510 (K.B.)
(Mansfield, C.J.) (alteration in original) (“The state of slavery is of such a
nature that it is incapable of being [legally] introduced [established] on [for]
any reasons, moral or political, but only by positive [written] law, which
preserves its force long after the reasons, occasions, and time itself from
whence it was created, is erased from memory. It [slavery] is so odious [evil],
that nothing can be suffered [allowed] to support [permit] it, but positive
[written] law [allowing detention without due process (none existed)].
Whatever inconveniences, therefore, may follow from the decision, I cannot
say this case [for slavery] is allowed or approved by the law of England; and
therefore the black [slave James Somersett] must be discharged [free from
slavery].”).
104. See Fiss, supra note 100, at 753. (“Judges ardently committed to
23
2014]
THE IMPROBABILITY OF POSITIVISM
585
Positivism holds that this is not only unnecessary and unwise,
but impossible as well. The criteria of legal validity are fixed by
the practice of officials, after all, and therefore, if a sufficient
number of judges are Textualists, textualism is fixed by the
Rule of Recognition. It is positive law. But if theoretical
disagreement is possible, methodology itself must be discussed,
debated, and contested—indeed, such contests cannot be
avoided. And while this is an immense responsibility, if
theoretical disagreement is possible, or even if legal officials
merely believe that it is possible, then it is also unavoidable,
though perhaps this might be a cause for hope rather than a
reason to despair.
legal positivism will ultimately be asked—as they were in the debates over
the constitutionality of slavery before the Civil War and in response to the
judicial efforts to protect industrial capitalism in the early part of the
twentieth century—to justify the public morality embodied in that text and
the processes by which those values are expressed.”).
http://digitalcommons.pace.edu/plr/vol34/iss2/2
24