Andrej Kristan (University of Bologna) and Giulia Pravato, Authoritative Disagreement: Meta-Legal Theory and the Semantics of Adjudication, in Meta-Legal Theory 149 (Mathieu Carpentier ed., 2022) on SSRN. Here is the abstract:
Legal disagreements have been one of the main topics of contemporary jurisprudence over the last four decades. Nevertheless, this chapter deals with the problem of their intelligibility from a largely unexplored perspective. It does not take up the usual debate on Dworkin’s argument of ‘theoretical disagreement’ against positivist legal theories. Instead, the chapter focuses on what we propose to call ‘authoritative legal disagreement’ and argues that this kind of legal disagreement meets the definition of the phenomenon recently discussed in the philosophy of language as ‘faultless disagreement’. Although the name of the latter can be misleading and is certainly ambiguous, we find that the analysis of authoritative legal disagreements in terms of faultless disagreements fulfils two valuable objectives. First, the analysis accounts for the intelligibility of authoritative legal disagreements as real disagreements without recourse to an error theory. Secondly, it serves as a meta-theoretical primer in the semantics of adjudication – something which has not been done before. Our demonstration is divided into three parts. In Section 5.2, we give two examples of authoritative legal disagreement alongside paradigmatic cases of faultless disagreement. In Section 5.3, we then discuss the possibility of authoritative disagreements as legally ‘faultless’ disagreements in three very different theories of law: rule-skeptical legal positivism, conventionalist legal positivism and – perhaps surprisingly – interpretivist legal antipositivism. Finally, in Section 5.4, we offer eight semantic explanations for faultless disagreements and combine these explanations with specific legal theories.
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