Common ground and grounds of law

Abstract

A central premise of Ronald Dworkin’s famous Argument from Theoretical Disagreement is that judges regularly disagree about the grounds of law. The occurrence of these so-called ‘theoretical disagreements’, it is argued, cannot be explained by the influential legal positivist theory of HLA Hart according to which the grounds of law are constituted by judicial consensus. However, in his attempt to show that theoretical disagreements actually exist Dworkin primarily relies on the occurrence of judicial disagreements about legal interpretation, as he takes them to be disagreements about the grounds of law. In this article, I will argue that these interpretive disagreements do not pose a problem for Hartian positivism. My argument will rely on standard work from the field of pragmatics which provides sophisticated explanations of how the interpretation of linguistic texts, such as legal documents, works. On the model that I will propose, interpretive disagreements concern the meaning that the legal authorities who enacted the document intended to get across and these disagreements arise from diverging assumptions about the context in which these documents were enacted. I will argue that disagreements about intentions and contextual presumptions do not concern the grounds of law and therefore do not threaten Hartian positivism.