Abstract
This paper presents in outline Luigi Ferrajoli’s axiomatic and general theory of law, as developed in his lifelong work Principia Iuris. The first section focuses on the three main aspects of the theory: the methodological, the theoretical and the pragmatic, which respectively represent the theory’s syntax, semantics and its pragmatics. Ferrajoli identifies three deontic gaps of norms: firstly, the one between their validity and efficacy; secondly, the one between their justice and validity; and finally, and most importantly, the one between validity and existence (i.e. normative force). The presence of such gaps is, according to Ferrajoli, the extraordinary innovation that entrenched constitutions have brought into modern legal systems, by establishing norms that are superior to statutes and case law. In this sense, all normative phenomena (except for the constitution itself) can be conceived both as norms and as facts. In the second section the role of juridical science is briefly discussed.
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Notes
From now on, this text will be referred as PI. Unless otherwise indicated, page references in brackets will be to volume I of the book.
In this sense, Ferrajoli’s theory of law is the result of calculus. The first volume of PI is the ‘translation’ in plain language of the more formal reasoning of volume 3. For a description of the axiomatic method, cf. Varga 2009, pp. 17–18.
In particular, Hughes and Cresswell’s system S5 plus Barrican’s formula.
I owe this remark to G.B. Ratti, and his presentation ‘Ferrajoli’s Juridical Logic’ at a Workshop at the University of Edinburgh Spring Programme in Legal Theory, in June 2010.
This is also a point made by G.B. Ratti, see n. 4 above.
This is a consequence of the relationship between the intension and the extension of such a theory (3–11).
According to Ferrajoli, the distinction between legal theory and dogmatics lies in their different methodological status. Concepts of dogmatics are obtained by lexical reformulations of the empirical legal language, i.e. the language used by statutes, judges, academics, and so on. Concepts belonging to legal theory are conventionally defined by the theorists themselves, according to their fruitfulness.
As such, they cannot be a priori established—thus they will change from system to system.
This is possible thanks to the distinction Ferrajoli draws between a legal act and its meaning, i.e. the norm produced by such an act.
Although it could be said that Ferrajoli defines the ‘province’ of the problem; he does not directly engage with the ‘topographic’ tools, that is, the tools of formal logic. In PI, he does not mention, for instance, the defeasible character of legal norms and the problems it bears. On this, cf. Ferrer Beltràn and Ratti (2010).
[Editor’s Note: As Ferrajoli explains in his contribution to this symposium, principia iuris tantum are principles external to positive law while principia iuris et in iure are principles internal to positive law].
Ferrajoli is keen to point out the conventional character of the choices made by the theorists in the first place—some of which can of course be politically, but also morally, related.
According to Ferrajoli, Guastini and many others, this is the biggest flaw in Kelsen’s theory, namely the fact that he does not account for this meta-theoretical duplicity of constitutional legal systems.
Compare it with what Opalek and Wolenski (1975) define, in negative terms, as the ‘substantial overextension’ between the axiomatisation and the underlying system.
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Acknowledgements
My warm thanks go to Giorgio Pino, Giovanni Battista Ratti and in particular to Francisco Saffie Gatica for valuable comments on a previous draft of this paper, and to Patricia Armstrong for checking over my English. I remain the only one responsible for every error or omission in this piece.
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Sandro, P. An Axiomatic Theory of Law. Res Publica 17, 343–354 (2011). https://doi.org/10.1007/s11158-011-9168-9
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DOI: https://doi.org/10.1007/s11158-011-9168-9