Disagreement Definition In Law
3 It is not easy to determine how positivism is attached to a conventional conception of law.2 In fact, it can be said that there are as many «positivisms» as there are conventional theories. I will focus on conceptions that assume the law as dependent on the existence of a convergence of certain behaviors and attitudes. My main goal is to examine the merits of Dworkin`s critique of legal positivism. First of all, I would like to describe the main arguments put forward in the debate on legal differences. I then distinguish different levels where the officials do not agree; I will conclude with a pluralistic response to Dworkin`s challenge. 65 This type of disagreement is possible in a positivist setting, because the way in which words are used by officials is decisive. These are not conflicting views on legal grounds, but disputes about the nature of certain subject matter that is the subject of legal declarations. 51An other level includes the resolution of a particular case. It is important to distinguish at this level, as there may be a consensus on importance, but disagreement on how to resolve a case (for example, because it is recognized that there are several interpretive criteria that can be considered, but there may be discussions about how best to resolve a case40), and there may be agreement on how to resolve a case, but disagreement on certain criteria of interpretation (in fact, different criteria are very often in agreement with the solution). 1 There are widespread philosophical beliefs about the law that do not seem to be in doubt. It is generally accepted that the existence of a legal system must be subject to certain social facts.
However, many characterizations of these changing facts have been attempted. According to Hart`s model, law depends on a convergence of the behaviors and attitudes of certain individuals. Civil servants, in particular, share the same criteria for identifying the law of their legal system and are accountable to them.1 At the same time, it is also difficult to deny that there are differences of opinion among lawyers, for example on the interpretation of the law or the relevance of morality in the decision of cases. 50The controversy may also focus on the importance of the sources of a given legal order. On the one hand, there may be disagreement about valid interpretive canons and how they are organized in a hierarchy. As we have seen, a certain degree of convergence at this level is essential. In addition, differences of opinion may arise on the importance of sources as tokens; In other words, even if there is agreement on everything else, there may be differences of opinion on the importance of a concrete legal statement. However, these discrepancies do not seem theoretical.
In this sense, if there is a consensus on the criteria for interpretation, but disagreement on the content of a concrete statement, we should conclude either that there is no real consensus at the previous level (the criteria are indeed controversial), or that the disagreement is factual (on compliance with the agreed criteria). 46 The same is true where I find in the end that there is no essential distinguishing feature. The model helps to understand why there is disagreement when, in some cases, there is no clear answer. 60 In these cases, individuals discuss the importance of a legal statement. Consequently, contrary to what was previously defended in this document, there may be differences of opinion on the importance of sources — as tokens — even if there is agreement at the previous level. We can accept that ordinary language is the standard of interpretation on a case-by-case basis, but we disagree, for example, on whether fungi are plants or not, what toxicity is, or the nature of cruelty. . . .