Legal Agreement

This Article grapples with the question of what it means to agree about what the law is. First, it shows that the question of what it means to “agree about the law” invites us to consider many different kinds of agreement and disagreement we might have about what the law is. Second, it shows that without selecting one of these kinds of agreement, we cannot speak intelligibly about whether we agree or disagree. Third, it explains that this failure to choose is a source of much confusion and apparent disagreement between competing philosophers and philosophies of law.

Fourth, it argues that the presence or absence of at least certain kinds of agreement cannot tell us whether we should prefer Legal Positivism or other theories of law. Finally, it concludes that the pervasive reliance among Positivists on a generalized notion that there exists “massive agreement” about the law should be regarded skeptically.