The Grounds of Law

Abstract

In this paper I discuss two versions of Ronald Dworkin’s objection from theoretical disagreement. I start with Dworkin’s argument, in Law’s Empire, against what he calls ‘the “plain-fact” view of the grounds of law’. Dworkin’s argument is sound; but the plain-fact view, which Dworkin misattributes to HLA Hart, is a straw man. Indeed, Dworkin’s argument relies on a distinction that Hart pioneered and the plain-fact view denies: the distinction between ‘internal’, normative statements of law, and ‘external’, factual statements about law. That is my claim in Part I. In Parts II and III I turn to a more familiar version of Dworkin’s objection—a version that has been revived in recent literature—and to some attempts to answer it. I argue that this version, too, derives its strength from charging legal positivists with the failure to distinguish between external and internal statements. Unfortunately, many theorists are guilty as charged.

Free entrance.