Agreement and Disagreement in Law

32 Pages Posted: 7 May 2015

See all articles by Dale Smith

Dale Smith

University of Melbourne - Law School

Date Written: May 7, 2015


In recent years, there has been renewed interest in the question of whether Ronald Dworkin was correct to allege that legal positivists are unable to account for theoretical disagreement about law. However, relatively little attention has been paid to the related question of who can best account for agreement about law. An important exception is Brian Leiter’s argument that there is massive and pervasive agreement in legal judgments, and that positivism can account for this agreement but Dworkin cannot. In this article, I argue that Dworkin can account for such agreement, and that his explanation is no less straightforward than the positivist’s. I further contend that Leiter’s strategy for explaining theoretical disagreement is weakened once we recognise that Dworkin has a plausible explanation of agreement in legal judgments. I conclude by exploring how we might choose between the positivist’s and Dworkin’s competing explanations of agreement in legal judgments.

Keywords: Ronald Dworkin, theoretical disagreement, Brian Leiter, agreement in legal judgments, theory choice in jurisprudence

JEL Classification: K00, K39

Suggested Citation

Smith, Dale, Agreement and Disagreement in Law (May 7, 2015). Canadian Journal of Law and Jurisprudence, Vol. 28, No. 1, 2015, U of Melbourne Legal Studies Research Paper No. 706, Available at SSRN:

Dale Smith (Contact Author)

University of Melbourne - Law School ( email )

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