In this paper I analyze Bulygin’s conception of those legal statements asserting that a certain action is legally obligatory, prohibited or permitted. According to Bulygin, these statements are ambiguous. The can be external, empirical statements expressing the existence or validity of a legal norm, but the can also be internal, normative statements expressing a norm or an absolute, moral attitude. In the paper I attempt to defend that for a positivist theory, if law is conceived as a set of norms, this kind of statements do not report an empirical fact, but do not report an absolute moral attitude either. They surely assert a normative fact: the legal existence or validity of a normative entity, which is relative to a certain time and place. In my view, Bulygin’s failure to see this point is fundamentally due to the assumption of a false dichotomy between two ways in which an entity can exist: one empirical (relative), the other normative (absolute). In order to criticize this apparent dichotomy, I briefly sketch a constructivist conception in which we can say that legal norms exist. If my reasoning is correct, this conception is apt to explain those statements expressing the normative fact that a norm exists or is legally valid.

A constructivist conception of legal norms

REDONDO NATELLA, MARIA CRISTINA
2013

Abstract

In this paper I analyze Bulygin’s conception of those legal statements asserting that a certain action is legally obligatory, prohibited or permitted. According to Bulygin, these statements are ambiguous. The can be external, empirical statements expressing the existence or validity of a legal norm, but the can also be internal, normative statements expressing a norm or an absolute, moral attitude. In the paper I attempt to defend that for a positivist theory, if law is conceived as a set of norms, this kind of statements do not report an empirical fact, but do not report an absolute moral attitude either. They surely assert a normative fact: the legal existence or validity of a normative entity, which is relative to a certain time and place. In my view, Bulygin’s failure to see this point is fundamentally due to the assumption of a false dichotomy between two ways in which an entity can exist: one empirical (relative), the other normative (absolute). In order to criticize this apparent dichotomy, I briefly sketch a constructivist conception in which we can say that legal norms exist. If my reasoning is correct, this conception is apt to explain those statements expressing the normative fact that a norm exists or is legally valid.
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/11567/656440
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