Elmer's case: A legal positivist replies to Dworkin

Conclusion I have argued that Legal Positivism can accommodate the existence oftheoretical disagreements in law and that Ronald Dworkin is wrongto claim otherwise. As far as Legal Positivists are concerned, evenjudges who differ over both the truth of propositions of law and thegrounds or sources of law can have a legal duty to resolve their dis-agreements on the basis of legal arguments. The duty exists whenconventional legal practice creates it. Moreover, all Anglo-Americanlegal systems impose the duty on judges because all such systemscontain legal practices of the right sort: practices creating expectationsthat cases will be decided on the law even when they raise doubtsabout the content or proper formulation of a rule of recognition.Thus, Elmer's Case poses no threat to Legal Positivism. To the con-trary, it reveals the richness of that theory as few other cases can.Only if Elmer's Case is detached from the context of Anglo-American adjudication can it be said to undermine Legal Positivism.But then no theory of positive law could withstand its challenge.A draft of this essay was presented at a political theory workshop at the University of Chicago. I am grateful for comments received from Russell Hardin, Leo Katz, Steven Fletcher and Thomas Christiano on that occasion. I also thank Steven Walt and Jules Coleman, two of the better dressed philosophers I know.