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Legal Methodology

Legal disagreements

A pluralist reply to Dworkin’s challenge
Lorena Ramírez Ludeña
p. 11–32

Abstracts

In this paper I analyse the problem of legal disagreements, initially raised by Ronald Dworkin against Hartian positivism. According to Dworkin, disagreements are pervasive, since law is an argumentative practice in which participants invoke normative arguments. Positivists, who claim that law depends upon agreement among officials, have difficulties to make sense of the fact that lawyers frequently disagree. I first present the main arguments in the debate. I then go on to distinguish different levels at which lawyers disagree. Taking these levels into consideration, I articulate a pluralist reply that shows that the fundamental positivist tenets remain untouched by Dworkin’s challenge.

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Excerpt

In open access from June 2018.

Outline

1 Introduction
2 The Hart-Dworkin Debate
3 Three Replies
3.1 Disagreements Are Marginal
3.2 They Are Not Genuine Theoretical Disagreements
3.3 Positivism Can Account for Theoretical Disagreements
4 Levels of Disagreements
5 A Pluralist Answer

First lines

1 Introduction

There are widespread philosophical beliefs about law that are seemingly beyond question. It is commonly accepted that, in order for a legal system to exist, certain social facts have to obtain. However, many characterizations of these changeable facts have been attempted. According to the Hartian model, law is dependent upon a convergence in certain individuals’ conduct and attitudes. In particular, officials share the same criteria to identify the law of their legal system, and they are committed to them. At the same time, it is also difficult to dispute that there are disagreements among lawyers, for example about the interpretation of the law or the relevance of morality to deciding cases.

The problem of legal disagreements as sketched by Ronald Dworkin seeks to identify the difficulties that positivists such as Hart face when they attempt to maintain the conventional nature of law (in the sense mentioned) while recognizing the fact that there are disagreements – at...

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References

Bibliographical reference

Lorena Ramírez Ludeña, « Legal disagreements », Revus, 28 | 2016, 11–32.

Electronic reference

Lorena Ramírez Ludeña, « Legal disagreements », Revus [Online], 28 | 2016, Online since 10 June 2018, connection on 24 June 2017. URL : http://revus.revues.org/3345 ; DOI : 10.4000/revus.3345

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About the author

Lorena Ramírez Ludeña

Assistant Lecturer in Legal Philosophy at the Department of Law, Pompeu Fabra University, Barcelona

 Lorena Ramirez Ludeña
Edificio Roger de Llúria (Campus de la Ciutadella)
Ramon Trias Fargas 25-27
08005 Barcelona
Spain

E-mail: lorena.ramirez@upf.edu

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Copyright

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