Legal positivism affirms the thesis of the factuality of law and its essential reduction to a descriptively accessible "source". Law and morality are thus believed to make conceptually distinct and in principle separate or separable. This would also have the advantage of making the juridical dimension an area of certainty, an island of salvation in the stormy ocean of moral controversy. While values and principles are discussed and battled, on the fact of law and its source the conflict would be resolved through the authority of the sovereign, be it a legislator, a judge, or rather the normative force of the factual. Such a reconstruction of the juridical phenomenon is then functional to the pre-eminent political form of modernity, the State and its monopoly of violence. Now, however, this doctrine and this narrative suffer internal tensions and contradictions on the one hand (that, for example, of a tendential reduction of ought to being and therefore of the norm to fact, or rather a simplification of the ontology of law, expelling from this values and principles). And on the other hand what that narrative supports, state sovereignty, is called into question by the tumultuous processes of constitutionalization and globalization.
The concept of law has always been rather controversial. Modernity aims to settle the matter citing positive law – be that the ruling of a sovereign, the decision of a judge, or a simple convention or custom or power. Factuality would therefore put an end to the question of juridicity. This is the position presented in this book, along with the doctrines that have struggled with this point admonishing the proud jurist to play a neutral and “scientific” role.
Massimo La Torre is full professor of Philosophy of Law at the University of Catanzaro, and visiting professor at the University of Tallinn, in Estonia. He has taught at the European University Institute, at the University of Bologna, as well as in various other Italian and European universities. He was awarded the Alexander von Humboldt Forschungspreis in 2009. Among his publications we can mention: DisAvventure del diritto subjective, Giuffrè, 1996; Norms, institutions, values, Laterza, 1999; The crisis of the twentieth century. Jurists and philosophers in the twilight of Weimar, Daedalus, 2005; and the most recent Our law and freedom. Anarchism of the Moderns, Derive Approdi, 2017.
