The author discusses a number of issues in the theory of legal sources. The first topic is whether sources should be conceived of as acts or texts. The alternatives are connected with two competing theories of legal interpretation (viz., the cognitive theory and the sceptical theory), which entail different concepts of legal rules and law‐making. The second topic is whether a “formal” or a “material” criterion of recognition of sources should be preferred. The third section is devoted to the analysis (...) of rules of change. Four theories of rules of change are discussed, and five kinds of such rules are distinguished. The fourth section concerns judicial law‐making, with special reference to the creation of new legal rules by constitutional courts. (shrink)

Direct download(2 more)   Export citation   Bookmark   4 citations  

Direct download(2 more)   Export citation   Bookmark   4 citations  

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should (...) be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it isnecessarilyinvolved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project. (shrink)

Direct download(3 more)   Export citation   Bookmark   2 citations  

Direct download(2 more)   Export citation   Bookmark   1 citation  

This article examines the role of normative hierarchies in constitutional argumentation. A threefold distinction between formal, material, and axiological hierarchy is employed. The correlative concepts of formal validity, material validity, and applicability are also briefly described. Within this framework, four cases are analysed: Decisions 1146/1988 and 10/2010 of the Italian Constitutional Court, and Kadi I and Opinion 2/2013 of the Court of Justice of the European Union. As a result, it is argued that axiological hierarchies are frequently used to reshape (...) certain fundamental legal arrangements, namely, the hierarchy of sources (Decision 1146/1988 and Kadi), competence clauses (Decision 10/2010), and interpretive methodologies (Opinion 2/13). (shrink)

Direct download(2 more)   Export citation   Bookmark