The essay proposes a survey on the concept of 'extra-legal' positivity of law, understood as the set of legal arguments for (external) justification of the sentencing. The research traces its evolution: from the use of topics in the studies of Viehweg (50s-60s), through the alternative use of law (ideological current of the 70s), the transformation into the idea of living law (current of the 80s) and subsequently in an antagonistic formula with respect to the traditional production of law. Since the years 2000s courts in fact develop a tendency to replace the legislature as a central figure in the creation of law: a real schizophrenic antithesis between law intended as political rule (coming from the legislator) and law as an argumentative rule (posed by the judges) that substitutes the function of the parties in trial with a clear deficit of democracy.
Positività giuridica e usi (alternativi) del diritto: per la democrazia nel processo
Paolo Sommaggio
2018
Abstract
The essay proposes a survey on the concept of 'extra-legal' positivity of law, understood as the set of legal arguments for (external) justification of the sentencing. The research traces its evolution: from the use of topics in the studies of Viehweg (50s-60s), through the alternative use of law (ideological current of the 70s), the transformation into the idea of living law (current of the 80s) and subsequently in an antagonistic formula with respect to the traditional production of law. Since the years 2000s courts in fact develop a tendency to replace the legislature as a central figure in the creation of law: a real schizophrenic antithesis between law intended as political rule (coming from the legislator) and law as an argumentative rule (posed by the judges) that substitutes the function of the parties in trial with a clear deficit of democracy.
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