The question of the objectivity of law rotates around the determination of the status of the norms that constitute the major premise of the practical syllogism representing the formal scheme of the justification of judicial decisions. Those who deny the objectivity of law believe that the existence and meaning of legal norms depend on the opinion of judges and jurists considered individually. The different versions of the objectivity of law reject this sceptical conclusion. The strongest versions of objectivity accepted by the different doctrines of natural law presuppose metaphysical realism and rule out the idea that what seems correct to someone can determine what is effectively correct; the weakest versions, upheld by legal positivism, believe – at least in relation to the existence of legal social practice – that what seems correct to most members of a community determines what is effectively correct. Does a space exist between these two versions of objectivity? In this essay arguments are put forward in support of a negative answer.
Schiavello, A. (2013). The Third Theory of Legal Objectivity. In M. Araszkiewicz, J. Šavelka (a cura di), Coherence. Insights from Philosophy, Jurisprudence and Artificial Intelligence (pp. 137-154). Dordrecht Heidelberg New York London : Springer [10.1007/978-94-007-6110-0].
The Third Theory of Legal Objectivity
SCHIAVELLO, Aldo
2013-01-01
Abstract
The question of the objectivity of law rotates around the determination of the status of the norms that constitute the major premise of the practical syllogism representing the formal scheme of the justification of judicial decisions. Those who deny the objectivity of law believe that the existence and meaning of legal norms depend on the opinion of judges and jurists considered individually. The different versions of the objectivity of law reject this sceptical conclusion. The strongest versions of objectivity accepted by the different doctrines of natural law presuppose metaphysical realism and rule out the idea that what seems correct to someone can determine what is effectively correct; the weakest versions, upheld by legal positivism, believe – at least in relation to the existence of legal social practice – that what seems correct to most members of a community determines what is effectively correct. Does a space exist between these two versions of objectivity? In this essay arguments are put forward in support of a negative answer.
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