David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
Learn more about PhilPapers
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.”
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
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.
Citations of this work BETA
No citations found.
Similar books and articles
Francois Chevrette & Hugo Cyr, Legal Positivism? What Are You Talking About? ('De Quel Positivisme Parlez-Vous?').
Robert P. George (ed.) (1996). The Autonomy of Law: Essays on Legal Positivism. Oxford University Press.
Anthony James Sebok (1998). Legal Positivism in American Jurisprudence. Cambridge University Press.
G. Pino (1999). The Place of Legal Positivism in Contemporary Constitutional States. Law and Philosophy 18 (5):513-536.
Vadim Verenich (2011). On Relationships Between the Logic of Law, Legal Positivism and Semiotics of Law. Sign Systems Studies 39 (2-4):145-195.
Thom Brooks (2007). Between Natural Law and Legal Positivism: Dworkin and Hegel on Legal Theory. Georgia State University Law Review 23 (3):513-60.
Kenneth M. Ehrenberg (2011). The Anarchist Official: A Problem for Legal Positivism. Australian Journal of Legal Philosophy 36:89-112.
Vittorio Villa (2009). Inclusive Legal Positivism, Legal Interpretation, and Value-Judgments. Ratio Juris 22 (1):110-127.
Mario Jori (ed.) (1992). Legal Positivism. New York University Press.
F. Atria (1999). Legal Reasoning and Legal Theory Revisited. Law and Philosophy 18 (5):537-577.
Neil MacCormick (2007). Institutions of Law: An Essay in Legal Theory. Oxford University Press.
John Linarelli (2009). Analytical Jurisprudence and the Concept of Commercial Law. Penn State Law Review 114 (1):119-215.
Matthew H. Kramer (1999). In Defense of Legal Positivism: Law Without Trimmings. Oxford University Press.
Wilfrid J. Waluchow (1994). Inclusive Legal Positivism. Oxford University Press.
Joseph Raz (1979). The Authority of Law: Essays on Law and Morality. Oxford University Press.
Added to index2010-11-15
Total downloads9 ( #359,026 of 1,796,303 )
Recent downloads (6 months)1 ( #468,138 of 1,796,303 )
How can I increase my downloads?