Why We Argue About the Law: An Agonistic Account of Legal Disagreement

Tomasz Gizbert-Studnicki/Adam Dyrda/Pawel Banas (eds.), Metaphilosophy of Law, Hart Publishing, pp. 191-226, 2016

38 Pages Posted: 20 Feb 2016 Last revised: 13 Oct 2020

See all articles by Ralf Poscher

Ralf Poscher

Max Planck Institute for the Study of Crime, Security and Law

Date Written: February 19, 2016

Abstract

The argument from legal disagreement has been advanced by thinkers as diverse as Ronald Dworkin, Michael Moore or Jürgen Habermas to support different kinds of one-right-answers theories for the law. The mainstream in legal theory has always rejected these steep theoretical claims. It tried to marginalize legal disagreements and to explain them away as self-deceptions of the profession. Neither of these two explanations is convincing. The article proposes an agonistic account of legal disagreements which addresses their metaphysical, epistemological and semantic aspects. The rationality of legal disagreements lies in secondary effects for our legal practice, which is more complex than the quest for a single-right-answer in the case at hand. The agonistic account of legal disagreement happens to fit well with recent evolutionary agonistic accounts of reason and holds considerable explanatory advantages over the accounts it aims to overcome.

Keywords: legal disagreement, one right answer theories, Dworkin, Moore, Habermas

Suggested Citation

Poscher, Ralf, Why We Argue About the Law: An Agonistic Account of Legal Disagreement (February 19, 2016). Tomasz Gizbert-Studnicki/Adam Dyrda/Pawel Banas (eds.), Metaphilosophy of Law, Hart Publishing, pp. 191-226, 2016, Available at SSRN: https://ssrn.com/abstract=2734689

Ralf Poscher (Contact Author)

Max Planck Institute for the Study of Crime, Security and Law ( email )

Guenterstalstr. 73
Freiburg, 79100
Germany

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