Massimo La Torre

Law is traditionally related to the practice of command and hierarchy. It seems that a legal rule should immediately establish a relation between a superior and an inferior. This hierarchical and authoritharian view might however be challenged once the phenomenology of the rule is considered from the internal point of view, that is, from the stance of those that can be said to “use” rather than to “suffer” the rules themselves. A practice oriented approach could in this way open up a more liberal, and also somehow less parochial and ideological, road for legal theory. This is – it is argued in the paper – the programme, or better, the promise we can find in Herbert Hart’s main work, The Concept of Law. The article tries to render this promise more transparent while, nonetheless, not eschewing the blind sides of its narrative and argumentative strategy

Le droit est traditionnellement lié à la pratique du commandement et de la hiérarchie. Il semble qu’une règle juridique établisse une immédiate relation entre une norme supérieure et une norme inférieure. La conception hiérarchique et impérative peut néanmoins être remise en cause dès lors que la phénoménologie de la règle juridique est appréhendée d’un point de vue interne, celui de ceux que l’on peut considérer comme les « utilisateurs » de la règle plutôt que ceux qui la subissent. Une approche tournée vers la pratique pourrait, de cette façon, conduire à une théorie du droit plus ouverte et, d’une certaine façon, moins idéologique ou sectaire. C’est – comme le défend cet article – le programme ou mieux la promesse que l’on trouve dans l’ouvrage principal de Hart, le Concept de droit. Cet article tente de rendre cette promesse plus transparente sans toutefois dissimuler les difficultés de sa stratégie narrative et argumentative

This article provides an assessment of the merits of recent theories of legal reasoning. After a quick historical aperçu a number of models of legal argumentation are presented and discussed, with an eye to their mutual connection. An initial conclusion is that universalizability and discursivity are the common features of those models. The focal question dealt with, however, is that of the impact of the argumentative paradigms of adjudication on the very concept of law. Here the contention is that an argumentative style of reasoning contributes to rendering the structure of the law itself and its operations argumentative as well. By so doing the latter are—so to say—civilized and made less truculent. They will thus be able to develop more in conformity with a democratic form of life.

After the Maastricht and Amsterdam Conferences the European Union can no longer be conceived as an intergovernmental arrangement: It is a polity founded on an “overlapping consensus.” Consequently, to reconstruct the relations between national and Community law, legal monism does not work, neither in its statist, nor in its international version: Legal pluralism is needed, not in a sociological‐descriptive sense, but as a normative criterion by which a judge (and a citizen) must refer to many and various sources of law to settle a dispute. Legal pluralism, however, can operate only under a rule of recognition: a common normative framework within which a reasonable number of sources can be handled. What Europe needs, therefore, is an interactionist constitution, which should emerge through an “open‐ended”discursive process.

The author deals with the legal theoretical approach that has been labelled “legal institutionalism.” An old and a new version of this approach are singled out: The old one is identified with the theory defended by the Italian public lawyer Santi Romano in the first half of this century; the second one is seen in the recent work by Ota Weinberger and Neil MacCormick. After a short presentation of Romano's work, his ideas and the development proposed by MacCormick and Weinberger are compared. Similarities and differences between the two versions of institutional theory are worked out. A coda hints at an ambiguity in the definition of institution proposed by the “new” institutionalism.

This paper takes the dichotomy between “exclusive” and “inclusive” positivism and applies it by analogy to natural-law theories. With John Finnis, and with Beyleved and Brownsword, we have examples of “exclusive natural-law theory,” on which approach the law is valid only if its content satisfies a normative monological moral theory. The discourse theories of Alexy and Habermas are seen instead as “inclusive natural-law theories,” in which the positive law is a constitutive moment in that it identifies moral rules and specifies their meaning. The article argues that inclusive theories of natural law are better suited to expressing an authentic “republican” attitude.*In the seed of the city of the just, a malignant seed is hidden, in its turn: the certainty and pride of being in the right. (Calvino 1997, 162)

This paper discusses some models purported to legitimise a European supranational legal order. In particular, the author focuses on an application of the so‐called regulatory model to the complex structure of the European Community and the European Union. First of all, he tackles the very concept of legitimacy, contrasting it with both efficacy and efficiency. Secondly, he summarises the most prominent positions in the long‐standing debate on the sources of legitimation for the European Community. Thirdly, in this perspective, he analyses several, sometimes contradictory, notions of the rule of law. His contention is that we can single out five fundamental notions of the rule of law and that some but not all of them are incompatible with or oppose democracy. Finally, the paper addresses the regulatory model as a possible application of the rule of the law to the European supranational order. The conclusion is that the regulatory model should be rejected if it is presented as an alternative to classical democratic thought, though it might be fruitful if reshaped differently and no longer assessed from a functionalist standpoint of deliberation.

My paper consists of four sections. The first is concerned with the distinction and connection between fundamental and human rights. Here I shall just introduce a few conceptual notions and definitions that are more or less widely used, but that may help us to frame the issue and better focus on the most relevant question of the foundation or justification of human rights. In the second and third sections I will present what I believe to be the four fundamental normative situations that shape our understanding and use of human rights. In the second section attention will focus on what in my opinion is the most basic of these four normative situations, which I call the “existential” situation. This is intended to offer a strong foundation for human rights as “not metaphysical,” without appealing to or relying on heavy metaphysical assumptions. I will try to stick more or less to an argumentative strategy based on common sense. The third section, dealing with the three other normative situations, will to some extent be an exercise in eclecticism, trying to combine different approaches to (and schools of thought on) the question of normativity. Here eclecticism will not be trivial, or at least I hope not. In the fourth and final section I will briefly conclude with a general overview on the issue of the “existence” of normativity and human rights.

A permanent approach to what law is has been that of interpreting it in terms of repression or reduction of chances or courses of conduct. This approach, however, is not able to render justice to fundamental moments of the legal practice, beginning with constitutional law and its empowering rules. Nonetheless, the mainstream in the philosophy of law and in the legal theory has not at all been worried about this strange inadequacy of imperativism to offer a complete view of legal practice and legal institutions. Force, violence, sanction, prescription still are the basic conceptual knots used to weave the cloth of law and lawyers. Hannah Arendt perceptive though scanty remarks on law, within her wider reflections on action and judgment, offer a different view and open a new path for a jurisprudence less obsessed with coercion, and against the tradition supporting the centrality of command in the tlegal domain. Such view and that path this paper tries sympathetically to explore

Law seems to be irremediadibly connected to the experience of coercion and to a structure of hierarchy. This is so because it has traditionally been defined as a set of authoritative prescriptions, usually commands backed by the menace of a sanction, an evil eventually applied through the use of overwhelming violence. Law has also been related to some kind of structure or system which is intrinsically hierarchical, both in the sense of the hierarchy of people whose conduct is addressed by the law and in the sense of the logical interdependence of the legal prescriptions themselves. The British legal philosopher H. L. A. Hart criticizes in his celabrated book The Concept of Law powerfully the command theory and also reshapes the theory of the hierarchical structure of rules. The paper will tries to follow Hart’s attack to the traditional imperativistic view and will then focus on his treatment of international law. The aim is to show on the one side how promising Hart’s approach could be, and on the other side how poor however his conceptualization of international law at the end of the day reveals to be.

There are few problems to which legal philosophers have devoted more attention than the relationship between morality and law, or, said in different terms, between the “good” and the “obligatory”. One might think that all that should and could be said about it has already been uttered or written. Nevertheless philosophy — and legal philosophy is no exception — is just this: rethinking old problems which are in fact always new,1 and for which no definitive solution is given — nor is possible, I would add — and which need a permanent effort of reassessment. There is no reason for disappointment or despair in this endless work. It is neither pointless nor irrelevant

La presente contribución recoge el diálogo mantenido entre distintos filósofos del Derecho a propósito de la última obra del Profesor Massimo La Torre “Il diritto contro se stesso. Saggio sul positivismo giuridico e la sua crisi”. Al hilo del trabajo del citado autor, los participantes reflexionan sobre preguntas centrales para la teoría y filosofía del Derecho contemporánea: ¿cuál es la naturaleza del Derecho? ¿es el razonamiento jurídico eminentemente moral? ¿qué lugar debe ocupar la práctica jurídica en su conceptualización? ¿qué lugar ocupa la fuerza en el Derecho?