Abstract

BISOGNI, Giovanni. Behind the Veil of Positive Law. On Il diritto contro se stesso. Saggio sul positivismo giuridico e la sua crisi, by Massimo La Torre. Isonomía [online]. 2021, n.55, pp.118-141.  Epub Feb 28, 2022. ISSN 1405-0218.  https://doi.org/10.5347/isonomia.v0i55.470.

In his recent book – Il diritto contro se stesso. Saggio sul positivismo giuridico e la sua crisi – Massimo La Torre advances a clear thesis: legal positivism must be rejected unless we wish to keep understanding law as regulated violence. However, this anti-positivism could amount to throwing the baby out with the bath water. Indeed, in modern times law is constituted through the dialectic between morality and power, between what is decided and who decides, between “legitimacy” and “positivity” in Habermasian terms. This by no means implies that the right balance in this dialectic is to be found only in legal positivism, especially when it claims to assimilate “legitimacy” to “positivity”. But an antipositivism pending too much towards morality, to what is decided, too concerned with “legitimacy”, would end up falling into the equivalent, even if opposite, error of positivism.

Keywords : Massimo La Torre; legal positivism; antipositivism; legitimacy; positivity; substantive rationality (ratio); procedural rationality (auctoritas).

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