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Una visión antipositivista del derecho
Atienza, Manuel
2025
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Abstract
Silvia Niccolai's wide-ranging research develops a 'topical' conception of law based on the descriptive character of the rules, on equity as a norm of recognition, on the rejection of the purely instrumental character of law and on the reference to a logic of 'common sense', which also opposes the 'mythicisation' of expert knowledge. Despite some valid insights, the book, which opposes positivism (understood in the broadest sense) in the name of a so-called 'classical' realism, sacrifices too much the importance of the historicisation of the idea of law, as well as that of the constitutionalisation of rights, and the specificity of a post-positivist vision. The latter is capable of distinguishing between prescriptive and descriptive language, but also of recognising the bridges between these levels of discourse and between law and morality, and therefore of not reducing law to a norm. Although there is a profound grammar of law, it is unrealistic, and indeed contrary to the common sense of what is understood by law today, not to take into account the fact that it is for the most part derived from the decision of political authorities, and is therefore subject to change, and constitutes technical and expert knowledge.
Source
Manuel Atienza, "Una visión antipositivista del derecho" in: "Etica & Politica / Ethics & Politics (2025) XXVII/1", EUT Edizioni Università di Trieste, Trieste, 2025, pp. 375-385
Languages
es
Rights
Attribution-NonCommercial-NoDerivatives 4.0 International
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