Morality Of Conflict Reasonable Disagreement And The Law
56 In this area, it is noted that individuals sometimes refer to different criteria of interpretation to support different solutions in the same case. Are these real theoretical disagreements that call into question the thesis of the positivists? It is important to determine whether what has the greatest meaning of disagreement is a reconstruction in which participants try to provide the best justification for the practice of law. If we take into account the arguments of the lawyers and the way they discuss with each other, Dworkin`s position does not seem fair. Lawyers often use different arguments to defend their position, and seek to maximize their likelihood of winning the case. They gather arguments of different kinds, making it difficult to understand that they have a coherent iusphilosophical position. And it does not appear that the competent representatives, the judges, are significantly different in this regard. Very often, they stick to an interpretive canon that they leave aside in other decisions, without pointing out a distinctive feature of the case that would justify the change.44 An analysis of the legal repertoire shows that judges, far from conducting theoretical disputes, constitute a façade of justification for their decisions. I think it is appropriate to say that, in problematic cases, we have conventions that are extremely legal and allow us to defend divergent positions. Even if, in these cases, individuals end their opinion by asserting that the law establishes this solution, the theory of error and disingenuity seem to explain what is really going on. Moreover, in many cases, the best interpretation of what individuals say and do leads us to conclude that, even if they think there is no law, they think that making a decision on a case-by-case basis and trying to identify the answer that best fits the system, the one they deem more defensible for moral reasons.
, which they consider to be the best consequences, etc. 19From addition, all differences on what the law requires do not pose a problem to positivism. The relevant disagreements (which would call into question Hart`s ideas of convergence) are only those that take place between public servants.