Ettore Battelli

Brief analysis about exceeding legal positivism and a «gradual order» for sources of contract law

  • Abstract

Informations and abstract

Keywords: Sources of Law; Contract; Model Clauses; Soft Law; Legal Interpretation.

Legal system is not a "fact" but a "process": an infinite and necessary dialectic, under a dynamic dimension, like an infinitive form of a concrete legal substance. Considering the current crisis of our State monopoly over making law and the hierarchy of sources of law, the modern contract law is able to offer a variety of responses, appropriate to social, economic, technological dynamic changes, only thanks to the combination of various regulatory sources and multiple regulatory entities. Hard law, according to the positivist tradition, no longer exclusively exists and, on the contrary, legal instruments of soft law take relevance in order to influence the structure of the present and of the future, to give answer to the most complex needs, when the criteria of "authority" and "sanction" is no more sufficient. A new model of "flexible legality", involving all those who are affected by it, is nowadays relevant. This new perspective not only justifies a matter of rule making, but also of law interpretation and application.

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