Aunque el debate jurídico entre Hans Kelsen y Carl Schmitt ha sido extensamente discutido y analizado, rara vez se lo sitúa en el marco de la disputa entre el mundo político antiguo y el moderno. La pérdida de este punto central de referencia impide focalizar la raíz filosófica de fondo en la polémica entre ambos autores, a saber, una batalla entre dos modelos alternativos de racionalidad política y moral. Uno es el antiguo (reivindicado por Schmitt) y otro el moderno (defendido (...) por Kelsen). Sostengo que no situar dicho debate en semejante contexto nos priva de comprender las implicaciones jurídicas que se desprenden del conflicto entre los supuestos teóricos normativos que hacen surgir a la Modernidad y el horizonte teleológico que da lugar a la Antigüedad. While the legal debate between Hans Kelsen and Carl Schmitt has been widely discussed and analyzed, it is rarely located within the coordinates of the political dispute between the ancient and modern world. The loss of this central point of reference prevents focusing on the deeply philosophical root wich is in the midst of the controversy between the two authors, namely, a battle between two alternative models of political rationality and morality. One is the ancient (claimed by Schmitt) and the other is the modern (defended by Kelsen). i argue that not placing this debate in such context deprives us from understanding the legal implications arising from the conflict between the normative theoretical assumptions that give rise to Modernity and the teleological horizon which gives rise to the ancient world. (shrink)

An increasing number of Italian scholars are beginning to share the idea that the conceptual basis of legal positivism (LP) is wrong, particularly in the field of Public Law. According to a group of theories called “neoconstitutionalism,” constitutionalism is to be understood not only as a principle based on the need to impose legal limits to political power, but also as an aggregation of values capable of continually remodelling legal relationships, positioning itself as a “pervasive” point of reference for legal (...) experience. A recent essay by Professor Antonio Baldassarre, President Emeritus of the Constitutional Italian Court, about the “misery of legal positivism” is a good expression of this view. In this article, the ideas outlined by Baldassarre are examined and criticized. The paper also tries to defend a version of legal positivism, which has both a conceptual and prescriptive meaning, relating to decisions made on the basis of rules. This view is based on the two correlated concepts of primary formalism and secondary formalism of “competence and procedure.”. (shrink)

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)

Among contemporary forms of constitutionalism, Luigi Ferrajoli’s Garantismo may be considered as the rather unfashionable attempt to build up a comprehensive and multi-layered theory, which still takes seriously the positivist heritage. This paper offers, in brief outline, a synthetic view of the social setting, the philosophical background, and the basic features of this conception of constitutionalism, when compared with legal positivism and other mainstream forms of (neo)constitutionalism.

The phrase, ‘political obligation’, is far more popular in English than in other European languages. Whether this may be due to historical circumstances, or to a peculiar bent of the English mind, is a fascinating question; but it is not the one which I propose to discuss here today. I am mentioning it only to explain the choice of my subject, a subject which would probably sound rather uncommon to an Italian audience, but which, I am sure, has a familiar (...) ring to English ears. My subject, I would like to emphasise, is the nature of political obligation; my approach will be analytical rather than historical; and indeed, let me say at once that this lecture is a kind of examen de conscience in which I am myself involved, since I feel personally responsible for having introduced the phrase into my own native language, and for having used it during a life-time as if its meaning were self-evident, without ever raising the questions which I want to raise today. (shrink)