This chapter explores the articulation between two of the major themes of Legal Theory that of the content of Law in its systemic intelligibility (the issue of the Legal System) and that of the constitution and manifestation of this same content in its effective practical social or practical-communitarian assimilation (the issue of the Sources of Law), treating this articulation (of assumed connections and presumed differences) as if it were at stake the counterpoint between two diverse territories. The consideration of the origin or the emergence of this relatively unusual treatment “forces” us, in the first stage, to return to the remarkable (but no less difficult) convergence between normativism and historicism between the universal intelligibility of the norm-ratio and the plural theory of sources, involving Savigny’s legacy concerning the three Rechstarten (Gewohnheitsrecht, Gesetzesrecht, Juristenrecht) which we see constitutively assumed and reflexively thematized (even though differently) by Scientific Conceptual Positivism and Allgemeine Rechtslehre. The second stage is, however, indispensable. It is now the opportunity to explore (in just one of its dimensions) the Hart/ Dworkin’s debate (and this also as a legacy assimilated by other fronts of the confrontation between conventionalist positivism and non-positivism). The dimension in question is precisely the one that, concerning Legal Theory, contrasts an external moderate cognitive approach and an internal normative one, but now, as it would be expected, dominantly focused on the discussion concerning the determination of the content of law and the thesis of the social sources: as if the tensions attributable to conventionalism (correlative to those that nineteenth century’s Naturhistorische Methode preserved) were precisely those that relate the concept of rule (and its plausible uses of general classificatory words) with the infinite possibilities of the social sources illuminated by the rule of recognition (and its customary “nature”). From this discussion emerges the third stage, in which (with Dworkin, but above all beyond and even versus Dworkin) it is argued that our current situation, without prejudice to the benefits of external (certainly analytically moderate, but also empirical-explicatively radical and even critically “alienated” external) approaches, benefits from exposing Legal Theory to the possibilities of an internal perspective capable of paying attention to the multidimensionality of the Legal System and the plurality of (institutionalized or quasi-institutionalized) Legal Sources while considering the mapping of contemporary Legal Thinking from the perspective of a conception of Law which treats it (or its Western conformation) as a form of life, as a project and as a tradition.

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“New” Questions Concerning the Experience of the Legal System and the Problem of the Sources of Law or the Place and Claims of an Internal Critical Approach: Going Beyond the Possibilities of a General Theory of Law

  • Jose Manuel Aroso Linhares

摘要

This chapter explores the articulation between two of the major themes of Legal Theory that of the content of Law in its systemic intelligibility (the issue of the Legal System) and that of the constitution and manifestation of this same content in its effective practical social or practical-communitarian assimilation (the issue of the Sources of Law), treating this articulation (of assumed connections and presumed differences) as if it were at stake the counterpoint between two diverse territories. The consideration of the origin or the emergence of this relatively unusual treatment “forces” us, in the first stage, to return to the remarkable (but no less difficult) convergence between normativism and historicism between the universal intelligibility of the norm-ratio and the plural theory of sources, involving Savigny’s legacy concerning the three Rechstarten (Gewohnheitsrecht, Gesetzesrecht, Juristenrecht) which we see constitutively assumed and reflexively thematized (even though differently) by Scientific Conceptual Positivism and Allgemeine Rechtslehre. The second stage is, however, indispensable. It is now the opportunity to explore (in just one of its dimensions) the Hart/ Dworkin’s debate (and this also as a legacy assimilated by other fronts of the confrontation between conventionalist positivism and non-positivism). The dimension in question is precisely the one that, concerning Legal Theory, contrasts an external moderate cognitive approach and an internal normative one, but now, as it would be expected, dominantly focused on the discussion concerning the determination of the content of law and the thesis of the social sources: as if the tensions attributable to conventionalism (correlative to those that nineteenth century’s Naturhistorische Methode preserved) were precisely those that relate the concept of rule (and its plausible uses of general classificatory words) with the infinite possibilities of the social sources illuminated by the rule of recognition (and its customary “nature”). From this discussion emerges the third stage, in which (with Dworkin, but above all beyond and even versus Dworkin) it is argued that our current situation, without prejudice to the benefits of external (certainly analytically moderate, but also empirical-explicatively radical and even critically “alienated” external) approaches, benefits from exposing Legal Theory to the possibilities of an internal perspective capable of paying attention to the multidimensionality of the Legal System and the plurality of (institutionalized or quasi-institutionalized) Legal Sources while considering the mapping of contemporary Legal Thinking from the perspective of a conception of Law which treats it (or its Western conformation) as a form of life, as a project and as a tradition.