Brian Flanagan (National University of Ireland, Maynooth (NUI Maynooth) – Faculty of Law) & Guilherme F. C. F. de Almeida (Yale University) have posted What Cognitive Science says about the Hart-Dworkin Debate on SSRN. Here is the abstract:
Hard cases generate disputes in which judges insist that fidelity to law sometimes requires departing from its letter. Ronald Dworkin argued that this phenomenon poses a distinctive challenge to legal positivism. Positivists have replied in familiar ways: by treating such exchanges as pragmatic “loose talk”, as disagreement generated by ambiguity in “law”, or as disputes about further legal materials—especially plans purported to fix the interpreter’s latitude. This article argues that these replies are not merely interpretive options. They function as empirical hypotheses about the conventions that govern “law” talk and about how people apply rules. Drawing on recent cognitive-science findings, we argue that these hypotheses are in tension with converging evidence from rule-violation judgments, legal validity judgments, and metalinguistic judgments about the concept of law. The upshot is a shift in burdens: to rely on the standard deflationary repertoire, positivists must develop a more credible empirical model of legal disagreement.
Highly recommended.