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(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1293-1299 | Article | (Abstract) Jurisprudential accounts of the autonomy of EU law have struggled to offer a compelling account of its unique features. Nevertheless, I argue that Ronald Dworkin’s court-centric methodological approach is better-suited than Hartian positivism to shed light on the notion that EU law is autonomous. This is because most questions about the autonomy of EU law, when asked from a positivist perspective, are of little or no practical significance and philosophical inquiry will inevitably be inconclusive. By contrast, the autonomy of EU law is routinely employed as a normative principle helping EU courts to decide the issue of which party should win the case at hand. It is better understood as a shorthand reference to a political requirement, namely that EU courts ought to identify the main values behind European integration and to build – as opposed to find in the extant legal materials – a coherent body of principles.

Critics of legal positivism claim that this doctrine is no longer adequate to formulate answers to contemporary problems inherent of constitutionalism. This alleged decline of legal positivism has created a space to a neo-constitutionalist discourse, which has experimented great acceptance among constitutional law scholars, lawyers and judges. Given such critical formulations, the objective of this paper is to delineate a specific profile of legal positivism – in a neo-Kantian perspective – and discuss possible contributions and limitations set to address problems faced in contemporary constitutional jurisdiction.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 99-115 | European Forum Insight of 24 May 2023 | (Abstract) The paper addresses the question whether there exists a specific “Austrian” community of EU law scholars. This forms part of the broader question whether there exists a peculiar German or German-speaking community of EU law scholars (to which the current issue is devoted). To this end, the paper examines three fields – the impact of the legal positivist tradition in the Kelsenian style on EU law re-search in Austria, the constitutional framework for the Austrian participation in the EU as well as empir-ical factors specific to Austrian EU law academia and practice – and concludes that one may well make a case for the existence of a genuinely “Austrian” community of EU law scholars.

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The contributions that I will discuss here have been constructed by my interlocutors in such a way as to develop, each from his or her own point of view, some of the themes and concerns at the heart of my book. I will also follow a similar path, first specifying what from my point of view constitutes the theoretical basis of the present discussion and, in a second step, discussing in my turn some of the points of view put forward by my readers. [ABSTRACT FROM AUTHOR]

The increasing complexity of the relation law-society elicits new conceptual tools, that is to say a cognitive approach for understanding the legal sphere beyond the liberal-positivist legacy. Starting from some sparks provided by Gabriel Tarde and Leon Petrażycki, this paper draws a theoretical model concerning the cognitive dimension. The analysis of its levels allows to discuss some current societal pathologies (i.e. populism) in the light of the contemporary democratic-constitutional systems and makes room for conclusions about the proposal for a cognitive turn after the linguistic turn of the last century. [ABSTRACT FROM AUTHOR]

The transformations of constitutionalism that occurred after the Second World War represent an unresolved challenge for Legal positivism. According to some authors, the very meaning of these changes is that the core postulates of Legal positivism (law as a product of human will and the distinction between law and morality) have failed. Consequently, according to such scholars as Atienza, Ruiz Manero and Alexy, this current of thought has lost all its explanatory capacity, and it should therefore be abandoned in order to embrace another one. The aim of this essay is to examine these theses, especially Atienza's, also by highlighting the post-war crisis of Legal positivism, and finally argue that a renewed Legal positivism, in the light of rigid constitutionalism, is, in any case, a theory against any forms of - more or less veiled - Natural Law, which is able to account for today's legal experience. [ABSTRACT FROM AUTHOR]

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Copyright of Il Giusto Processo Civile is the property of Edizioni Scientifiche Italiane E.S.I. SpA and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Analisi e Diritto is the property of Edizioni ETS s.r.l. and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This essay reply to the criticisms of my book Conflitti pratici. Quando il diritto diventa immmorale raised by Alberto Andronico, Francisco Javier Ansuátegui Roig, Francesco Biasetti, Tommaso Greco, Eugenio Lecaldano, Ulderico Pomarici and Francesco Viola. The paper focuses on the task of legal philosophy in teaching and in the public debate, the distinction between legal positivism and legal non-positivism, the relationship between metaethics and legal philosophy, the nature of practical conflicts, and the connection between rules and values. [ABSTRACT FROM AUTHOR]

Margaret Gilbert’s work on sociality covers a wide range of topics, and as she puts it “addresses matters of great significance to several philosophical specialties – including ethics, epistemology, political philosophy, philosophy of science, and philosophy of law – and outside philosophy as well” (Gilbert 2013, p. 1). Herein I argue that Mark Greenberg’s recent call to eliminate the problem of legal normativity is well motivated. Further, I argue that Gilbert’s work on joint commitment, and more specifically obligations of joint commitment, allows us to move beyond the problem of legal normativity while cashing out H.L.A. Hart’s thesis that moral and legal obligations are distinct.

Copyright of Sociologia del Diritto is the property of FrancoAngeli srl and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Sociologia del Diritto is the property of FrancoAngeli srl and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This essay focuses on the judgment of values considered as an aspect of the relationship between law and morality. Hart's legal positivism has clearly underlined the issues raised by a formalistic account of this relationship, whereas the 'neo-constitutionalist' approach has the merit of accounting for the constitutionality of legal systems with respect to the relevance of this process for legal interpretation. On this basis, contemporary legal theory seeks to determine how and to what extent the judgments of value are relevant in allocation, and what consequences their preeminence has on legal interpretation. Legal hermeneutics, in particular, leads us to acknowledge that legal reasoning is embedded in the sphere of values but, at the same time, such an approach highlights, in terms of a sceptical perspective of interpretation, the inter-subjective criteria which limit judicial discretion. [ABSTRACT FROM AUTHOR]

This article is in some respects provoking. It starts using a quotation from the famous Kundera's book on Immortality as a peg to hang a discussion on the transformation of individual wishes into rights and on the fragmentation sustained by human rights after the cultural revolution of 1968. It was in that period that the evolution of modern legal and political thought (deeply rooted in gnosticism) reached its climax, after developing through Scholastic rationalism in the 14th century and the modern doctrines of natural law (together with the scientific revolution) in the 16th. Between the 18th and the 19th century the human rights went through an age of abstractness (the Enlightenment and the Déclaration in 1789) and then of socialization, until their ultimate denial as "individual" rights in the 20th century, dominated by totalitarian nationalism and communism (both anti-individualistic). After the Nuremberg Trial and the rising crisis of legal positivism, the human rights have been submitted to a process of constitutionalization and internationalization (see UN Universal Declaration) which, however, have not been able to cast light on their pre-normative (i.e. metaphysical) nature. In such a way, human rights remain under control of a single power (either from a nation state or from some supranational community) instead of being founded on what is essentially human. It is the individualistic nature of modern human rights, strengthened by secularization in the post-modern age, that prevents the durable foundation of human rights from being revealed, leaving them to the fragmentation of individual wishes - as written in Kundera's book. Only a deep rethink of the (gnostic) process which has led mankind to modernity could allow us to save the notion of "human right", bringing it from the pluralistic fragmentation to the essence of the law. [ABSTRACT FROM AUTHOR]

Copyright of Analisi e Diritto is the property of Edizioni ETS s.r.l. and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)