Andrew Tutt, Yale University Law School & Information Society Project, has published Legal Agreement at 48 Akron Law Review 215 (2015). Here is the abstract.
Widespread agreement about "what the law is" is often held out as among the most powerful arguments in favor of Legal Positivism. Its power as an argument is thought to be two-fold. First, Positivism is said to readily explain why such agreement exists. Second, it is argued that no other theory of law explains legal agreement just as well, or even very well at all. The argument from widespread or "massive" agreement invites a critical inquiry. What does it mean to say that two or more people agree about what the law is? Does there really exist such massive agreement? Does its existence really strike a decisive blow for Legal Positivism? This Article examines the range of things we might mean when we say that people agree about what the law is. In doing so, it shows that many confusions and apparent disagreements about the concept of law are clouded by unstated but often serious differences in understanding what it means to agree. This Article concludes that the argument from widespread agreement is misguided because the nature of legal agreement is ambiguous. Very often, apparent agreement about the law is not agreement of the meaningful sort necessary to bolster the case for Legal Positivism or, indeed, any theory of law. For that reason, the argument from agreement makes little difference to theory choice in this domain. If anything, the existence of such ambiguous agreement would seem to cut against Legal Positivism's claims, which appear to require widespread agreement of a sort rarely observed in practice.Download the article from SSRN at the link.