Who takes "the argument from theoretical disagreement" seriously?

In recent literature in analytic general jurisprudence one cannot overlook a large set of works devoted to so-called “argument from theoretical disagreement”. The argument was coined by R. Dworkin who used it both negatively, as a weapon against conventionalist theories of law (such as legal positivism), and positively, as an argument showing that the special kind of disagreement – namely the “theoretical” disagreement regarding the proper selection of the “grounds of law” – plays a pivotal role in legal discourse and thus defines legal practice. The point is, according to Dworkin, that judges, parties and legal scholars do not disagree merely empirically when they try to solve or argue in particular cases. Such empirical disagreements were classified as ones in which the concept of law and, in particular, the criteria of legal validity – are clearly established; disagreements regarding e.g. whether some statute, proscribing such-and-such duties exists). There were several positivist responses to that argument: classical positivistic claim that important legal disagreements are merely empirical disagreements and every dispute about criteria of validity is a dispute not about law, but about repairing law (which is a special case of law-making); or a (quasi?)-conceptual and statistical claim that theoretical disagreements do not play any important role in legal systems, since they appear only in the narrow minority of cases, in the highest courts etc. (as B. Leiter puts it, on “the pinnacle of the pyramid”). These arguments were rightly recognized by S. Shapiro as actually overlooking the Dworkinean problem. Shapiro suggests that we should think of theoretical disagreement more seriously. To put it differently, the argument from theoretical disagreement poses a “serious threat to legal positivism”. In my paper I will first focus on few contemporary, positivist answers that take this argument seriously, namely the S. Shapiro’s idea of meta-interpretive disagreement (within his planning theory of law) and A. Golanski’s idea that theoretical disagreements can be scrutinized by use of J. Searle’s account of collective intentionality. Both positions seem to defend legal positivism and nonetheless give credit to the Dworkinean main argument. During presenting some comparison between these accounts I will stress their similarity lying in general, positivistic acknowledgement that theoretical disagreements are not necessary moral disagreements. However, although the argumentation seems to be parallel at some points, at some other places it interestingly goes in totally different directions. Then I will show some immanent trouble in Dworkin’s formulation of the argument (“Dworkin’s paradox”). The lesson from the paradox will be that one cannot use the argument from theoretical disagreement seriously and, at the same time, argue that only one theoretical position (concept of law) is right. The theoretical disagreement is, ultimately, a disagreement between rival theories (conceptions) of law. After this comparison, I will present a more holistic, meta-theoretical account of theoretical disagreement. I will try to show that even theorists who find themselves positivists have good reasons to think that theoretical disagreements are plausible disagreements regarding the concept of law and the functions of legal theories (descriptive, normative, prescriptive). I will also show that the merit of the argument is not merely theoretical, but practical as well