Torben Spaak (Stockholm University) has posted Legal Relativism: Normativity, Motivation, And Disagreement on SSRN. Here is the abstract:
I have elsewhere defended a relativist account of the central components of legal arguments – that is, legal norms, norms of legal method, and normative (or evaluative) legal statements – constructed along the lines of Gilbert Harman’s well-known version of moral contextualism, an account that is in keeping with the fundamental tenets of legal positivism. Of course, contextualist accounts of moral norms or statements are not without their problems; and in this article, I consider three objections that might be raised against such accounts, with an eye to the question of the relevance of these objections to legal contextualism, including the version of it that I have put forward. The objections are that moral contextualism (i) cannot account for the normativity of morality, (ii) cannot account for moral motivation, and (iii) cannot account for moral disagreement. I argue (A) that whether or not the normativity objection or the moral motivation objection, or both, pose a threat to moral contextualism, neither poses a threat to legal contextualism; and (B) that while the disagreement objection does pose a threat to both moral and legal contextualism, contextualists of both types can avoid this objection and remain relativists by giving up contextualism and embracing so-called truth-relativism instead. I also argue, however, (C) that the truth-relativist solution to the disagreement objection depends on an assumption that might be mistaken, namely, that our practice of using assessment-sensitive language and engaging in faultless disagreements contributes to the fostering of coordination of contexts and thus to a shared view of the world.
Highly recommended.