ABSTRACT

Legal theorists tend to focus on disagreement over the law, and yet a theory of law should also explain why lawyers and judges agree on the law as often as they do. To that end, this article first pins down a precise sense in which there can be pervasive agreement on the law. It then argues that such agreement obtains in the United States and likely in many other jurisdictions as well. Finally, it contends that Hartian Positivism offers a straightforward explanation of this phenomenon and, indeed, a better explanation than rival theories, like Ronald Dworkin’s Law as Integrity or Scott Shapiro’s Planning Theory. Given the ubiquity of legal agreement, Hartian Positivism’s explanatory superiority in this regard is a strong, albeit still not dispositive, consideration in its favour. The broader lesson is that theories of law should give greater priority to explaining legal agreement than many theories now do.

摘要

法律理论家倾向于关注对法律的分歧，但法律理论也应该解释为什么律师和法官经常对法律达成一致。为此，本文首先明确了可以对法律达成普遍一致的精确含义。然后它辩称，此类协议在美国以及许多其他司法管辖区也可能获得。最后，它认为哈蒂实证主义对这一现象提供了直接的解释，而且确实比罗纳德·德沃金的完整性定律或斯科特·夏皮罗的规划理论等竞争对手的理论更好的解释。鉴于法律协议的普遍存在，哈田实证主义在这方面的解释性优越性是对其有利的强有力的考虑因素，尽管仍然不是决定性的。