THEORETICAL DISAGREEMENT ABOUT LAW

As the dominant direction of the study of legal phenomena, legal positivism has suffered criticisms above all from representatives of natural law. Nevertheless, the most complex criticism of legal positivism came from Ronald Dworkin. With the methodological criticism he formed in “Law‘s Empire”, Dworkin attacked the sole foundations of legal positivism and his main methodological assumptions. Quoting the first postulate of positivism, which understands the law as a fact, Dworkin claims that, if this comprehension is correct, there could be no dispute among jurists concerning the law, except if some of them make an empirical mistake while establishing facts. Since this is not the case, Dworkin proves that this is actually a theoretical disagreement which does not represent a disagreement about the law itself, but about its morality. On these grounds, he rejects the idea of law as a fact and claims that the law is an interpretive notion, which means that disagreements within jurisprudence are most frequently interpretative disagreements over criteria of legality, and not empirical disagreements over historic and social facts.