Explaining Theoretical Disagreement in Legal Positivism

The author examines a long-standing objection to legal positivism: that it cannot properly account for "theoretical disagreement" about the grounds of law. The paper describes two positivist responses: that such disputes are either disguised attempts to change the law or mistakes arising from the absence of a shared practice that would settle the matter. The author applies these explanations to the historical record around Riggs v. Palmer and compares the decision to other opinions by the same judges to assess which account fits best.

What the study examined

The author addresses a philosophical challenge to legal positivism centered on what is called “theoretical disagreement”. This refers to disputes about the grounds of law or the criteria that make legal rules valid.

The paper focuses on two rival positivist accounts that aim to explain these disputes without accepting them at face value.

Key findings

• Two positivist explanations. One account characterizes these disputes as disingenuous: participants are, consciously or unconsciously, arguing about what the law should be rather than what it is. The other treats them as error: parties honestly believe there is a determinate fact about the grounds of law in a given case, but that belief is mistaken because there is no convergent practice among officials to establish a rule of recognition on the point.
• Application to a historical case. Attention is given to Riggs v. Palmer, with the author examining the decision alongside the actual historical context and other opinions by the Riggs judges around the same time. This comparison is used to evaluate which positivist explanation best accounts for the nature of the disagreement in that particular instance.
• Explanation versus face value. The work highlights how positivist explanations can either “explain away” apparent theoretical disputes or preserve their surface interpretation, and it considers which move is more defensible when historical practice and judicial behavior are taken into account.

Why it matters

Clarifying how positivism can respond to disputes about legal validity matters for debates about the nature of law and judicial reasoning. If disagreements are simply policy disputes or errors about institutional practice, that affects how legal theory describes the source and limits of legal authority.

By testing the two explanations against a concrete historical episode and related judicial opinions, the paper aims to show what a persuasive positivist account would look like and what it would need to explain in order to retain the apparent force of theoretical disputes.