Explaining legal agreement

Jurisprudence 14 (2):221-253 (2023)
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Abstract

Legal theorists tend to focus on disagreement over the law, and yet a theory of law should also explain why lawyers and judges agree on the law as often as they do. To that end, this article first pins down a precise sense in which there can be pervasive agreement on the law. It then argues that such agreement obtains in the United States and likely in many other jurisdictions as well. Finally, it contends that Hartian Positivism offers a straightforward explanation of this phenomenon and, indeed, a better explanation than rival theories, like Ronald Dworkin’s Law as Integrity or Scott Shapiro’s Planning Theory. Given the ubiquity of legal agreement, Hartian Positivism’s explanatory superiority in this regard is a strong, albeit still not dispositive, consideration in its favour. The broader lesson is that theories of law should give greater priority to explaining legal agreement than many theories now do.

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Bill Watson
Harvard University

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References found in this work

Metaphysical Dependence: Grounding and Reduction.Gideon Rosen - 2010 - In Bob Hale & Aviv Hoffmann (eds.), Modality: metaphysics, logic, and epistemology. qnew York: Oxford University Press. pp. 109-135.
Ground.Michael J. Raven - 2015 - Philosophy Compass 10 (5):322-333.
Massively Shared Agency.Scott Shapiro - 2014 - Rational and Social Agency: The Philosophy of Michael Bratman:257--293.
Do precedents create rules?Grant Lamond - 2005 - Legal Theory 11 (1):1-26.

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