The paper is devoted to the analysis of the debate, which is going on in Anglo-American jurisprudence, about legal disagreements. In this context, the conceptual framework within which the debate is developed is explored and a refinement of the notion of “theoretical disagreement”, which is central to such a debate, is put forward. This conceptual refinement is then applied to the main judicial cases discussed by the participants in the debate and two alternatives ways of reading such cases are propounded. Finally, the paper examines and rejects the view that agreement is a central or necessary feature of law and argues that the rejection of such a view is no threat for legal positivism, understood as a wertfrei scientific enterprise.
Los desacuerdos juridicos en la jurispudence anglosajona
RATTI, GIOVANNI BATTISTA
2009-01-01
Abstract
The paper is devoted to the analysis of the debate, which is going on in Anglo-American jurisprudence, about legal disagreements. In this context, the conceptual framework within which the debate is developed is explored and a refinement of the notion of “theoretical disagreement”, which is central to such a debate, is put forward. This conceptual refinement is then applied to the main judicial cases discussed by the participants in the debate and two alternatives ways of reading such cases are propounded. Finally, the paper examines and rejects the view that agreement is a central or necessary feature of law and argues that the rejection of such a view is no threat for legal positivism, understood as a wertfrei scientific enterprise.
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