What Counts as Law?
Among Ronald Dworkin’s noteworthy contributions to contemporary legal thought is his focus on what he called “theoretical disagreements in law.” Dworkin used the term and the idea behind it as part of his larger assault on what he understood as legal positivism, but my goal in this Article is neither to attack nor defend positivism. Nor is it to attack or defend Dworkin. Nevertheless, I want to follow Dworkin in reflecting on the idea of theoretical disagreement in law, and indeed to follow him as well in using Riggs v. Palmer as the initial vehicle for that reflection.3 Still, I will dissociate the idea of theoretical disagreement—and Riggs as well— from either an attack on or a defense of legal positivism. Rather, my aim is to suggest that what Riggs may best illustrate is a disagreement about just what sources—or inputs, for those who prefer an uglier but less theory-laden word—count as legitimate legal sources in the first instance. This disagreement, as opposed to disagreements about how to interpret or apply those sources, is what I understand as a theoretical disagreement, or at least as one form of a theoretical disagreement. What makes the disagreement about the identity of the legitimate sources or inputs a theoretical one is precisely that some sort of theory of what counts as law lies near the foundation of what just law is within some jurisdiction. A theory of legitimate (or valid) legal sources is thus at least part of a theory of law, even if that theory is a local (or particular) theory—a theory of law here and now, and not a theory of law in every place and at every time.