53When we look at what has been explained above, it is easy to formulate a partial answer to Dworkin. First, the number of disagreements is low if we consider the frequency that the law has in our lives, which makes it easier to find alternative explanations for cases where disagreements take place. 2The problem of legal disagreements, as described by Ronald Dworkin, seeks to identify the difficulties faced by positivists like Hart when trying to maintain the conventional nature of the law (in this sense), while acknowledging the fact that there are – at least on the surface – disagreements about what the law establishes. The problem for positivists is even worse, as they argue that the beliefs and attitudes of participants must be taken into account, and in many cases they see themselves as significant disagreements over the law. However, the mere fact of the officials` disagreement shows that there is no clear legal answer to the case, according to Hart. The idea that the parties do not agree on the answer that the law really requires would make no sense. 48 Therefore, even if it is disputed that fruit and vegetables are natural species, I think that the best way to reconstruct the disagreements over tomatoes is to assume the existence of two different communication channels. I use here an example similar to Nix v. Helden (149 US 304, 1893). The case is analyzed in Moreso 2010: 41 and ff. 4Allin`s hart debate has been going on for some time, changing course several times and affecting a wide range of scientists who disagree on the subject of the dispute.
However, it is undeniable that the problem of disagreements in law is one of the main aspects of the debate. 22 I submit that a certain degree of agreement on the content of the sources is necessary in order to understand the function performed by the sources and the criteria for their identification. I also maintain that disagreements over interpretation are not as widespread as is sometimes assumed. 52In the discussion of disagreements, a number of examples of different levels were used. However, I think it is appropriate to focus on whether there are often differences of opinion among participants on the level of legal resolution of cases arising from disagreement on the level of validity or criteria of interpretation. Indeed, these disagreements can be understood as calling into question convergence, which, according to positivism, is one of the main elements of the law. 15The semantic point argument is therefore not a problem for positivists. Convergence in the identification of the law is not relevant because of the nature of the word or concept, but because it is the result of conceptual analysis. Using conceptual analysis, positivism concludes that convergence is relevant to identifying law, but this does not follow from the assertion that words or concepts require the existence of common criteria.19 Let us now move on to the analysis of the criticism that positivism, which requires convergence, is incapable of providing an accurate characterization of disagreements in the criteria of legal validity.
the sources of the law and their interpretation. 9Dworkin argues that legal theorists often exclude the possibility of theoretical disagreements because they subscribe to semantic legal theories that consider the meaning of words to depend on common criteria. In law, this means that it is assumed that public servants use the same criteria to consider something like the law. According to Dworkin`s reconstruction of positivism, the meaning of the word “law” makes the law dependent on common criteria, and therefore agreement based on law is fundamental. This is the well-known semantic argument introduced by Dworkin to explain why positivists require that the criteria we use to determine what matters as law be established by agreement.9 People, if competent in the use of the term, agree on the reasons for the law. Controversies would make no sense because people would use the same word (“law”) with different meanings, and if the meaning determined the subject of the controversy, they would discuss different things. 62There may be two different channels of communication, one arising from the general use of the word and the other from the use by experts, which leads to a dispute as to the chain of communication to which the concept of right belongs. Determining the right chain of communication requires theorization so that meaningful disagreements on these issues can arise. This would be e.B. the case where a law introduces a fruit tax and is discussed (since there are obviously differences between habitual use and use by the expert), whether tomatoes are included in the regulation or not.48 26 It can be argued that the number and importance of disagreements are not relevant to Dworkin because even if there were a global agreement, it could claim that participants attribute a purpose to the practice and understand that what the practice requires depends on that purpose, even in simple cases. However, it would be a remarkable coincidence.
Dworkin should show why this reconstruction is better than a simpler reconstruction based on common criteria (which, as Hart points out, can be accepted by officials for all sorts of reasons). Hart`s theory is able to explain the practice of law in simple cases without assuming that lawyers are (in a sense) engaged in an exercise in political philosophy. Either way, even if Dworkin struggles to explain the deal in law, positivists still have to consider legal disagreements. It can also be argued that while there is a broad consensus on the number of cases to be decided, participants disagree on the specific details of the legal theory they adopt. However, in the last part of this document, I will defend the insignificance of this type of disagreement. 33Two main strategies that try to balance theoretical disagreements have been developed. They demand either a refinement of the conventionalist model or its abandonment. 43Does the existence of disputes at these levels pose a problem for positivism? Dworkin seems to assume that this is the case. He understands law as an argumentative practice in which individuals disagree.
Not only do civil servants disagree on the law of a particular legal system, but theorists also have an interpretative attitude towards it. Indeed, according to Dworkin, either we understand that theorists support semantic theories, meaning that they are unable to reconstruct disagreements, or they are understood as a suggestion of competing normative theories within the framework of an interpretative conception of law. In this way, he argues that the debate he has with Hart and other theorists shows the argumentative nature of law and that the different theories of law compete with each other normatively.38 The main questions to be considered are whether the very existence of disputes between theorists at previous levels shows that the law is argumentative. and whether the fact that Dworkin may be able to understand other positions as part of his conception of interpretation is an argument in favor of his position. 61 On the other hand, other types of disagreement are also understandable when we examine direct reference theories. First of all, the question may arise as to whether we can reconstruct the use of a particular word according to direct reference theories or according to the conventionalist scheme: to determine that individuals use a word according to direct reference theories, we need not only empirical verification, but also an analysis of our assumptions about the use of words. which is evident in our reactions to counterfactual situations, and the conventional nature of a word does not need to be transparent to those who use it. 57A final group of cases may be problematic. Sometimes the discussion has to do with the meaning of a word, in the sense that different parties to the dispute have conflicting ideas about the main characteristics of the object to which the word refers.
If, according to the positivist model, the truth value of legal decisions depends on the existence of a convergence of participants in terms of the interpretation of legal statements, these disagreements would be meaningless. The emergence of the debate would show the absence of an already existing answer. However, I believe that positivism can reconstruct these cases if we take into account the arguments put forward by direct reference theories.45 1There are widespread philosophical beliefs about the law that seem indisputable. It is generally accepted that certain social facts must exist for a legal system to exist. However, many characterizations of these changing facts have been attempted. According to Hart`s model, the law depends on a convergence of the behavior and attitudes of certain individuals. Officials, in particular, share the same criteria for identifying the law of their jurisdiction and are required to do so.1 At the same time, it is also difficult to deny that there are differences of opinion among lawyers, for example on the interpretation of the law or the relevance of morality in deciding cases. 39 I do not wish to deny that the participants do not agree on the identification of the law because they do not agree (in a certain sense) on theoretical issues ….
English
Português