Hard cases and theoretical disagreements

Ronald Dworkin’s ‘objection from theoretical disagreement’ to HLA Hart’s legal positivism has been understood by positivists to be ‘vastly different’ from Dworkin’s earlier critique of Hart, which I term the ‘objection from hard cases’. I contend, however, that positivists have failed to see a close, internal connection between the two objections, namely: the later objection subsumes the earlier one. Consequently, Dworkin’s objection from theoretical disagreement bears more directly on the dispute between ‘inclusive’ and ‘exclusive’ positivism – the rival variants that developed in response to Dworkin’s earlier objection from hard cases – than has been recognized. Specifically, a form of response to the objection from theoretical disagreement offered by exclusive positivists is shown, in the light of the internal relation between the two objections, to risk collapsing exclusive positivism into inclusive positivism. I propose an alternative exclusive positivist response to Dworkin’s objection from theoretical disagreement that preserves exclusive positivism as a distinct position in its own right.