Ronald Dworkin's anti-positivist argument from theoretical disagreement (ATD) in Law's Empire (1986) was one of the most significant volleys levied against legal positivism in the twentieth century. Dworkin argues theoretical disagreements about law pose a serious problem for legal positivists (like H.L.A. Hart) and that Dworkin's theory of law accounts for the existence of these disagreements in a way the positivist cannot. Scott Shapiro, in his book Legality (2011), argues his positivist theory of law, the Planning Theory, meets the challenge posed by ATD. In this thesis I provide two main reasons why Shapiro has not met Dworkin's challenge. First, Shapiro does not address the full force of Dworkin's challenge, which is to give a metaphysical account of law in cases of theoretical disagreements, not just a practical or epistemological account of legal reasoning in cases of theoretical disagreements. Second, Shapiro's theory by its own terms does not address all types of theoretical disagreements. Shapiro identifies theoretical disagreements with what Shapiro calls meta-interpretive disagreements. In fact, some theoretical disagreements about law are not meta-interpretive disagreements (that is, they are just plain interpretive disagreements). Therefore, the Planning Theory of law does not fully address ATD as it purports to.
Subject (authority = RUETD)
Topic
Philosophy
Subject (authority = ETD-LCSH)
Topic
Positivism
Subject (authority = ETD-LCSH)
Topic
Jurisprudence
RelatedItem (type = host)
TitleInfo
Title
Rutgers University Electronic Theses and Dissertations
Identifier (type = RULIB)
ETD
Identifier
ETD_7619
PhysicalDescription
Form (authority = gmd)
electronic resource
InternetMediaType
application/pdf
InternetMediaType
text/xml
Extent
1 online resource (iii, 82 p.)
Note (type = degree)
M.A.
Note (type = bibliography)
Includes bibliographical references
Note (type = statement of responsibility)
by Nevin Edward Johnson
RelatedItem (type = host)
TitleInfo
Title
Graduate School - New Brunswick Electronic Theses and Dissertations
Identifier (type = local)
rucore19991600001
Location
PhysicalLocation (authority = marcorg); (displayLabel = Rutgers, The State University of New Jersey)
Rutgers University. Graduate School - New Brunswick
AssociatedObject
Type
License
Name
Author Agreement License
Detail
I hereby grant to the Rutgers University Libraries and to my school the non-exclusive right to archive, reproduce and distribute my thesis or dissertation, in whole or in part, and/or my abstract, in whole or in part, in and from an electronic format, subject to the release date subsequently stipulated in this submittal form and approved by my school. I represent and stipulate that the thesis or dissertation and its abstract are my original work, that they do not infringe or violate any rights of others, and that I make these grants as the sole owner of the rights to my thesis or dissertation and its abstract. I represent that I have obtained written permissions, when necessary, from the owner(s) of each third party copyrighted matter to be included in my thesis or dissertation and will supply copies of such upon request by my school. I acknowledge that RU ETD and my school will not distribute my thesis or dissertation or its abstract if, in their reasonable judgment, they believe all such rights have not been secured. I acknowledge that I retain ownership rights to the copyright of my work. I also retain the right to use all or part of this thesis or dissertation in future works, such as articles or books.