From a legal philosophical point of view, the most interesting theses of so-called neo-constitutionalism are those that challenge methodological legal positivism. As an approach to law, legal positivism presupposes the possibility of distinguishing between “law as it is” and “law as it should be”, between ideal law and real law, and, on the basis of this distinction, it identifies the object of legal science in positive law. The attack of neo-constitutionalism on this way of seeing legal knowledge revolves around three arguments: a) the argument of the correctness claim b) the argument relating to the impossibility of clearly distinguishing the observer from the participant, and c) the argument of the interpretive turn in legal science. My goal here is to show that methodological legal positivism is unable to reply convincingly to a critique based on these arguments. Another issue, which I do not deal with directly, is to determine whether, from these criticisms, it is possible to configure a legal philosophical perspective that is an alternative to both natural law doctrine and legal positivism. On the one hand, I feel that this is a futile issue, which is likely to run aground in sterile disputes whose outcome is predetermined by the starting stipulative definitions. On the other hand, I think it is possible and appropriate, at a conceptual level, to reconstruct legal positivism and natural law as mutually exclusive perspectives. In this case, the so-called neo-constitutionalist authors can be linked to the one or the other conception of law, depending on whether criticisms of methodological legal positivism are accompanied by an objectivist and cognitivist meta-ethical perspective or, conversely, by a subjectivist and non-cognitivist one. In the first case, we would be looking at anti-positive-law ideas of law (and, therefore, at natural law ones); in the second, at post-positivist conceptions of law that, despite foregoing the purity of legal science, remain faithful to the maxim auctoritas non veritas facit legem. In this way we would also recover the intuition of legal positivists like Hans Kelsen and Alf Ross, who consider ethical non-cognitivism an essential element of legal positivism.
|Number of pages||16|
|Journal||DIRITTO & QUESTIONI PUBBLICHE|
|Publication status||Published - 2016|