5 - Disagreement in Practical Philosophy

Summary

Throughout its history, up until the present, many have doubted that the dispute over what makes law is a substantive dispute. When Glanville Williams (1945, 146) said that this was “a verbal dispute, and nothing else,” he was speaking for many others, before and since. My aim in this and the following chapter is to try to get some perspective on the distinctive kind of disagreement positivists and nonpositivists have, in order to see better both why they think it matters and what the prospects for progress might be.

One thing is clear – the disagreement is long-standing and convergence seems unlikely. But there are two cases to consider. Lack of convergence sometimes reflects a lack of genuine subject matter, or at least lack of important subject matter, and sometimes it does not. It is helpful to start by considering some apparently similar debates from moral and political philosophy (as does Dworkin 2006, 145–62).

Disambiguation

Persistent disagreement and misunderstanding about key normative ideas can be important in legal, moral, and political argument because of the ideological use to which conceptual entrepreneurship and the exploitation of unacknowledged assumptions can be put. Consider this discussion of liberty:

A person does not exercise his liberties when he kills or enslaves another; he does not vindicate his property rights when he steals from another. If he is restrained from these actions by another, he cannot claim a loss of liberty, but only the loss of an ability to act to which he was never entitled. Liberty is best understood as freedom from force or falsehood, not as a maximization of the things which are under one's disposition and control.

(Epstein 1979, 489)