Theoretical Disagreements in Law

Abstract In “Explaining Theoretical Disagreement,” I defended an answer to Dworkin’s argument that legal positivists cannot adequately explain disagreements among judges about what the criteria of legal validity are. I here respond to a variety of critics, in particular, Kevin Toh. I argue that Toh misrepresents Hart’s own views and misunderstands the role of “presupposition” in both Hart and Kelsen. I argue that a correct reading of Hart is compatible with the error-theoretic interpretation of theoretical disagreement I defended in 2009.