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Philosophical Foundations of the Nature of Law$
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Wil Waluchow and Stefan Sciaraffa

Print publication date: 2013

Print ISBN-13: 9780199675517

Published to Oxford Scholarship Online: May 2013

DOI: 10.1093/acprof:oso/9780199675517.001.0001

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Legal Disagreements and the Dual Nature of Law *

Legal Disagreements and the Dual Nature of Law *

(p.301) 13 Legal Disagreements and the Dual Nature of Law*
Philosophical Foundations of the Nature of Law

Andrea Dolcetti

Giovanni Battista Ratti

Oxford University Press

This chapter tests the hypothesis that the presence of specific kinds of disagreements in most contemporary legal systems — those that we call interpretative disagreements — is a characteristic feature of law. It considers whether disagreements about the interpretation of sources of law would not simply be compatible with, but indeed presuppose, an agreement on the identification of those sources. To verify the hypothesis it discusses, in light of a refined taxonomy of legal disagreements, how the ambiguities in Dworkin's reconstruction of legal disagreements may affect his critique of Hart's legal positivism. It also investigates the relevance of the notion of legal disagreements for general jurisprudence. On the basis of the linguistic character of legal norms, the chapter maintains that interpretative (meaning-content) disagreements and institutional (source-based) agreement are related in such a way that it makes sense to talk of a ‘dual nature’ of law.

Keywords:   theoretical disagreements, legal positivism, sources of law, interpretation, prescriptive statements

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