Giuseppe Di Gaspare

Metatheory of legal positivism

  • Abstract

Informations and abstract

Keywords: Positivism; State; Legal Order; Public Law; Rule of Law.

Could legal positivism ‒ to this day the hegemonic theory of public law ‒ be interpreted as the new paradigm originating in the late-nineteenth-century? What paradigm did it replace and why did it so? Is there any correlation between the replacement of the previous paradigm and the crisis of "stato di diritto" (rechtsstaat)? Why did the traditional concept of law as bilateral juridical relation endured in private law, while being replaced in public law? Can it be argued that, in continental public law, the theories of Rechtsverhältnis (Jellinek), organicismo (Orlando), and ordinamento giuridico (Romano vs. Donati) are attempts to adapt to or to abandon the previous paradigm? Why did they fail? How was it that the "pure doctrine of law" (Kelsen) broke with tradition, and established the theoretical foundations of legal positivism, at the same time paving the way for legal nihilism?

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