ADAM DYRDA Who takes “the argument from theoretical disagreement” seriously? 1 [draft – please do not cite] 0. Introduction In recent literature on analytic general jurisprudence one cannot overlook a large set of works devoted to the so-called “argument from theoretical disagreement” (henceforth ATD). The argument was once 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 characterizes the central feature of legal practice (Dworkin 1986; cf. Leiter 2009: 1220). The point is, according to Dworkin, that judges, parties to legal disputes and legal scholars do not disagree merely empirically when they argue in particular cases. On his account “empirical disagreements” are classified as ones in which the concept of law and particularly the criteria of legal validity are clearly established (these are e.g. disagreements regarding whether some statute, proscribing such-and-such duties exists). There has been several significant positivist responses to that argument. Positivists claimed that important legal disagreements were merely empirical disagreements and that every dispute about criteria of validity was a dispute not about the existing law, but about repairing it (which is a special case of law-making). Some of them argued additionally 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”; Leiter 2009). These arguments were rightly recognized by S. Shapiro as actually overlooking the Dworkinean problem. Shapiro suggested that we should think of theoretical disagreement more seriously. For him the ATD posed a “serious threat to legal positivism” (Shapiro 2011). In this paper I will on focus two 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 simultaneously give credit to the Dworkinean general argument. When presenting a comparison between these accounts I will stress their similarity that lies in general, positivistic acknowledgement of the fact that theoretical disagreements are not necessary moral disagreements. 1 Jagiellonian University, Department of Legal Theory, e-mail: adam.dyrda@uj.edu.pl. This paper was written as a result of the research project no 2016/21/D/HS5/03839, financed by Polish National Science Centre.