Nonmoral Theoretical Disagreement in Law

Abstract

Although legal positivists have in the past decade come to accept the view that there is a necessary connection between law and morality, they have remained committed to the central thesis of legal positivism – that we can decide what the law is without committing ourselves to a view about which decision would be morally right. The most powerful challenge to this thesis, however, has rested on the belief, accepted by some but not others, that theoretical disagreement in law is pervasive. This is because moral assessments are typically controversial and subject to substantial disagreement. So the received view has been that theoretical disagreement is compelling evidence of law’s incorporation of moral notions.

By taking advantage of analytic resources only recently being developed in the philosophy of institutions (social ontology), the paper shows that constraints existing in law by virtue of its institutional nature render nonmoral theoretical disagreement widely possible, and frequently actual. An understanding of the logic of institutional power and authority shows that “theoretical” disputes in law are, in the first instance, best understood as nonmoral controversies over the standards for determining whether the existing legal materials are sufficiently “directed at” the present circumstances (the “intentionality” constraint), and whether they provide a solution to the new matter with sufficient exactness (the “exactness” constraint). Theorists have traditionally been too eager to overlook these sorts of disagreement about whether and how past legal materials and judicial decisions may fit the new situation, and have leapt too readily to the realm of moral justification.

Keywords: legal positivism, theoretical disagreement, H.L.A. Hart, Dworkin, Searle, morality, social ontology, philosophy of institutions