The authors analyze the portions of Shapiro’s primer Legality, which deal with the problem of legal disagreements and the related theory of interpretation (and meta-interpretation) deployed by Shapiro in order to overcome such difficulty. The question of legal disagreements and its seemingly inconsistency with the main assumptions of legal positivism makes it necessary to pay some attention to the current accounts of such a jurisprudential conception. This chapter first deals with legal positivism in the way it is commonly accounted for by Anglo-American jurisprudents. The authors go on to present their own account of methodological legal positivism, much indebted to Norberto Bobbio’s and Alf Ross’s works. Then, the argument from disagreements is summed up, and the difficulties it allegedly poses to legal positivism carefully analyzed. This leads to the analysis of Shapiro’s conception of legal interpretation and consequent response to such a challenge. In the final section, some conclusions are drawn, the main of which is that Shapiro’s sophisticated theory of interpretation is, on the one hand, supererogatory and, on the other hand, unfaithful to the genuine spirit of traditional methodological positivism, since it conflates descriptive and prescriptive aspects of legal interpretation.
Theoretical Disagreements: A Restatement of Legal Positivism
RATTI, GIOVANNI BATTISTA
2013-01-01
Abstract
The authors analyze the portions of Shapiro’s primer Legality, which deal with the problem of legal disagreements and the related theory of interpretation (and meta-interpretation) deployed by Shapiro in order to overcome such difficulty. The question of legal disagreements and its seemingly inconsistency with the main assumptions of legal positivism makes it necessary to pay some attention to the current accounts of such a jurisprudential conception. This chapter first deals with legal positivism in the way it is commonly accounted for by Anglo-American jurisprudents. The authors go on to present their own account of methodological legal positivism, much indebted to Norberto Bobbio’s and Alf Ross’s works. Then, the argument from disagreements is summed up, and the difficulties it allegedly poses to legal positivism carefully analyzed. This leads to the analysis of Shapiro’s conception of legal interpretation and consequent response to such a challenge. In the final section, some conclusions are drawn, the main of which is that Shapiro’s sophisticated theory of interpretation is, on the one hand, supererogatory and, on the other hand, unfaithful to the genuine spirit of traditional methodological positivism, since it conflates descriptive and prescriptive aspects of legal interpretation.
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