[automatically translated] This essay ricostruisceil debate, internal to the legal positivism of hartiana matrix, which developed as a result of the criticisms in particular by Ronald Dworkin in The concept of right to Herbert Hart. The two main versions of the post-hartiano legal positivism - the "exclusive legal positivism" and "legal positivism inclusive" - are not able to offer, for different reasons, an appropriate solution to the crisis of legal positivism. On the one hand, the exclusive positivism, as well as being internally inconsistent, manages to preserve the orthodoxy of the traditional legal positivism at too high a price, that is to artificially simplify, on the basis of dubious distinction, the relationship between law and morality and between theory of law and legal interpretation theory. on the other, positivism inclusive could establish itself as a plausible version of legal positivism (rather than as an unconscious form of anti-legal positivism) only provided to base its theoretical and general assumptions of an epistemological concept and, as it were, of an ontology of the sources social, adequate. And it is on this level that even the most philosophically inclusive legal positivists warned stalled. The identification of the limitations and shortcomings of the post-hartiano legal positivism is not, however, a firm theoretical end in itself or merely destructive, but it is the essential starting point for imagining a possible solution to the crisis of the contemporary legal positivism .
|Publication status||Published - 2004|