Tim Dare

Ronald Dworkin argues that disagreement in hard cases is ‘theoretical’ rather than empirical and of central importance to our understanding of law, showing ‘plain fact’ theories such as H. L. A. Hart’s sophisticated legal positivism to be false. The argument from theoretical disagreement targets positivism’s commitment to idea that the criteria a norm must meet to be valid in a given jurisdiction are constituted by a practice of convergent behavior by legal officials. The ATD suggests that in hard cases there is no such pattern of convergent behavior. Positivists are divided over the force of the ATD. Much of this disagreement over the force of the ATD can be understood as disagreement over just what it is that legal officials disagreeing ‘theoretically’ are disagreeing about. Once the scope of empirical and theoretical disagreements are more accurately plotted, we will see that the actual disagreements that occur in hard cases are not ones which threaten a deeper and pervasive pattern of convergent behavior, one which focuses not upon rules specifying criteria of legal validity, but instead upon broad processes for making, interpreting, and applying law. Such an account remains positivist, relying on the social fact that there is such a consensus, but allows for considerable disagreement among legal officials deciding cases within such procedures.

Jonathan Boston provides an insightful analysis of the emergence and persistence of child poverty in New Zealand. His remarks on why child poverty matters are brief but, as he reports, “[t]here is a large and robust body of research on the harmful consequences of child poverty”. One cost he does not explicitly mention is the increased risk of maltreatment faced by children living in poverty. Given the clear correlation between risk of abuse and poverty, Boston’s recommendations might be expected to go some way to addressing New Zealand’s appalling child maltreatment statistics. However, Boston himself identifies both fiscal and political barriers to the implementation of his proposed strategy. “Fundamentally”, he observes, “without adequate multi-party agreement, it will be hard to reduce child poverty on a durable basis” and “[c]urrently, such agreement is lacking”. Even if we accept Boston’s strategies for child-poverty reduction, then, it is prudent to consider other responses to the consequences of child poverty. Significant and controversial aspects of New Zealand’s 2013 White Paper for Vulnerable Children can be read in this light, and one of them – the proposal to use predictive risk modeling to identify children at risk of maltreatment – is the focus of this commentary.