Analisi e Diritto

My Debts to Bruno

Paolo Comanducci — 2022-12-15

The author recalls his relationship with Bruno Celano, recently deceased, and highlights the debts he contracted with him on a human and scientific level.

Remembering Bruno Celano. Around Some Contrasts

Mauricio Maldonado — 2022-12-15

In this article, we briefly reconstruct some of the most relevant philosophical contributions made by Bruno Celano. First of all, we reconstruct Celano’s contrast between legal positivism and natural law theory on the grounds of his transcendentalist, pluralist and nomodynamical approach. We put emphasis on his brilliant work about the so-called paradox of nomodynamics and also on the lack of connection between legal positivism and metaethical skepticism. We conclude this article with two personal memories of our relationship with Celano.

Introduction

Julieta A. Rabanos — 2022-12-15

On 27 and 28 January 2022, a seminar was held at the University of Genoa to discuss a recent book: “Teoría Analítica del Derecho” (2021), by Jorge L. Rodríguez (Universidad de Mar del Plata).
This section collects the contributions of the last two main commentators at the seminar, as well as three additional comments and the author's responses to each of them.

Elements of a Periodic Table

Miguel Fernández Núñez — 2022-12-15

The main concern of this essay is metaphilosophical and can be stated as follows: rational reconstructions of fundamental legal concepts respond to certain (theoretical and practical) requirements. Depending on what these requirements are, the theorist will pay attention or neglect (or, if she is not fully aware of it, she must pay attention or neglect) the potential virtues that her rational reconstruction might fulfill. Specifically, in this essay I critically expose and analyse Hohfeld’s and Kelsen’s theories of rights, in order to establish which main configurations of rights they establish and which ones they overlook or preclude. The mediate purpose of my analysis is to determine, within J. L. Rodriguez’s concise theory of rights, what are the major contributions and what tensions it displays. The ultimate purpose is to identify some decisions that the rights theorist can and should make in virtue of the kind of theory she aims to formulate.

The Step Not Taken. Competence, Determinative Rules and Constitutive Systems in Teoría Analítica del Derecho

Alejandro D. Calzetta — 2022-12-15

In this paper we argue that Rodríguez rejects the concept of constitutive rule too hastily and that his approach to legal competence suffers from it. We propose an alternative approach based on another notion of constitutive rule (A. Conte’s) that presents itself as a more complete approach than Rodriguez's own.

The Interpretation of Legal Norms

Sebastián Agüero-SanJuan — 2022-12-15

The work focuses on the proposals of Jorge Rodríguez in Teoría Analítica del Derecho, which deal with the question of how to conceptualise legal norms and the activity of interpretation. In addition to critically analysing the propositive part of the work in terms of these two elements, we will raise certain unresolved tensions when they are understood as complementary issues.

The Contingent Connections between Positivism and Originalism

Alessio Sardo — 2022-12-15

The main aim of this paper is to show that originalism and legal positivism have several elements in common: a radical skepticism towards ethical objectivism, the idea that law can be identified neutrally, and the belief that the semantic content of law derives primarily from the text of normative documents and the intentions of their authors. In this way, the proposed analysis fills a small gap in Jorge Rodriguez's masterpiece and, more generally, reconsiders the relationship between legal positivism and the prevailing interpretive paradigms. The expected impact is to redefine the boundaries between normative models of interpretation and conceptual models of jurisprudence. The methodological approach chosen is the synchronic comparison between widely paradigms and stratified construction proposed by legal scholars.

Universality and Normative Systems

Maria Cristina Redondo — 2022-12-15

This paper discusses a number of ideas put forward by Jorge Rodríguez in his book Teoría analítica del derecho in analyzing legal norms as reasons for action. First, I present a critique of Rodríguez's theses about what it means to adopt a universalist conception of the reasons that a legal system offers. In particular, I criticize the notion that a system of universal norms should necessarily be consistent and determine in each case a perfect balance between its norms that allows one to establish what should be done everything considered. Second, I criticize the distinction the author proposes between contestability problems related to the identification and application of legal norms as inconsistent with the universalist position he purports to advocate. Finally, some examples are given that attempt to show how a universalist conception of legal systems can explain the existence of conflicts between their universal norms without accepting that they are defeasible on the basis of extra-systematic considerations at the time of their application, that is, without abandoning the thesis that universal norms provide uniformly and invariably relevant reasons.

Second Replies to Criticisms on Teoría analítica del derecho

Jorge L. Rodríguez — 2022-12-15

This paper is a second response to critical comments on my book Teoría Analítica del Derecho (hereinafter TAD). Miguel Fernández Núñez has commented on the rational reconstruction of rights offered in the book; Alejandro Calzetta and Julieta Rabanos have directed objections to my disqualification of the notion of constitutive rules and to my reconstruction of power conferring norms; Sebastián Agüero-San Juan and Lorena Ramírez-Ludeña have pointed out questions about the relationship between my conception of norms and my defense of a partial indeterminist thesis regarding legal interpretation; Alessio Sardo highlighted the links between Originalism and Legal Positivism, and Cristina Redondo has disputed some of my theses on universalism, defeasibility, and normative conflicts. In the text I reflect on their ideas and try to answer some of their criticisms and remarks.

When Experts Create Law: Deference, Opacity, Legitimacy

Damiano Canale — 2022-12-15

The article focuses on the deference paid to experts by legislators and judges, highlighting a phenomenon hitherto not considered in the literature. I call this phenomenon “opacity of law”. In particular, the article distinguishes the opacity of legal provisions from the opacity of legal norms. A provision is opaque if it contains technical terms or expressions, incorporated into the text on the instructions of experts, that escape the understanding of the legislators. A norm is opaque, on the other hand, if its content is implicitly fixed by some experts in fact-finding, although that content is not understood by the judge who is called upon to apply the norm. When legal provisions or norms become opaque, epistemic deference to experts turns into semantic deference, and experts create new law in the sense that they determine the content of authoritative legal texts. Starting with two examples from case law, the article analyses the origin of this phenomenon, and its pernicious effects.