David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Ratio Juris 23 (4):505-539 (2010)
An increasing number of Italian scholars are beginning to share the idea that the conceptual basis of legal positivism (LP) is wrong, particularly in the field of Public Law. According to a group of theories called “neoconstitutionalism,” constitutionalism is to be understood not only as a principle based on the need to impose legal limits to political power, but also as an aggregation of values capable of continually remodelling legal relationships, positioning itself as a “pervasive” point of reference for legal experience. A recent essay by Professor Antonio Baldassarre, President Emeritus of the Constitutional Italian Court, about the “misery of legal positivism” is a good expression of this view. In this article, the ideas outlined by Baldassarre are examined and criticized. The paper also tries to defend a version of legal positivism, which has both a conceptual and prescriptive meaning, relating to decisions made on the basis of rules. This view is based on the two correlated concepts of primary formalism and secondary formalism of “competence and procedure.”
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References found in this work BETA
H. L. A. Hart (1994). The Concept of Law. Oxford University Press.
R. M. Dworkin (1988). Law's Empire. Harvard University Press.
Joseph Raz (1975). Practical Reason and Norms. Hutchinson.
Joseph Raz (1994). Ethics in the Public Domain: Essays in the Morality of Law and Politics. Oxford University Press.
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