Theoretical Disagreements through Positivistic Eyes

Abstract

The authors analyze the portions of Legalidad which deal with the problem of legal disagreements and the related theory of interpretation (and metainterpretation) deployed by Shapiro in order to overcome that difficulty. The question of legal disagreements, together with the main assumptions of legal positivism, according to the authors, makes it necessary to pay some attention to the current accounts of such a jurisprudential conception. As a consequence, the structure of their article is this: in the first section, it deals with legal positivism in the way it is commonly accounted for in Anglo-American jurisprudence; in the second section, the authors present their own account of methodological legal positivism, much indebted to Bobbio’s and Ross’s works; in the third section, the argument from disagreements is summed up and the difficulties it allegedly poses to legal positivism are carefully analyzed; this leads to the fourth section, where Shapiro’s conception of legal inter- pretation and consequent response to such a challenge is examined; in a fifth and final section, some conclusions are drawn, the main of which is that Shapiro’s sophisticated theory of interpretation is, on the one hand, supererogatory, and, on the other hand, unfaithful to the genuine spirit of traditional methodological positivism, since it conflates descriptive and prescriptive aspects of legal interpretation.