Resumo

MARTIN PEROT, Pablo  e  RODRIGUEZ, Jorge Luis. Desacuerdos acerca del derecho. Isonomía [online]. 2010, n.32, pp.119-147. ISSN 1405-0218.

One of the main aspects of Dworkin's arguments against Legal Positivism is that from a positivistic point of view there would be no satisfactory explanation for disagreements in legal practice. In the present paper we intend to show that this objection rests on an inadequate interpretation of the sources thesis. If legal rules were conventional in the sense that their existence depended upon a social agreement regarding their correct applications, it would be right to claim that disagreements would always indicate the absence of legal solutions for those cases under the scope of the given rules. However, Legal Positivism is not committed to this interpretation. Assuming what Juan Carlos Bayón has called deep conventionalism, the relevant agreement for the identification of the content of law is not an explicit agreement regarding the cases of application of legal rules but one regarding the criteria that guides their use. Under this interpretation of the sources thesis, Legal Positivism not only has an adequate explanation of legal disagreements, but a much more interesting one than Dworkin's.

Palavras-chave : Disagreements; Rules; Conventionalism; Legal Positivism.