Crítica, Revista Hispanoamericana de Filosofía, Volume 13, number 38, August 1981
Los conceptos de derecho
[The Concepts of Law]
Carlos Santiago Nino
Consejo Nacional de Investigaciones Científicas y Técnicas
Universidad de Buenos Aires


Abstract:

The main purpose of this article is to criticize a widely accepted methodological assumption made in legal philosophy, namely that there should be only one singular concept of law.

The author’s contention is that many traditional problems about legal gaps, the notion of legal validity and most particularly the dispute between positivists and anti-positivists can be solved by the recognition that there are alternative concepts of law.

Finnis, Raz and Dworkin hold the view that Hart’s concept of law is adequate only when used in internal statements. They consider it a normative concept that identifies legal rules through evaluative properties, that is to say, that a legal system includes the rules that ought to be applied by the judger according to the rule of recognition.

It is argued that Hart’s concept of law is a descriptive one, i.e., one that allows us to determine the existence and content of a legal system without any evaluative or moral considerations. Against Raz and Kelsen it is argued that only a descriptive concept of law satisfies the positivist theses.

The substantial point in the disagreement between positivism and natural law doctrines concerns the concept of law. Positivists opt for a pure descriptive concept, anti-positivists prefer a concept which includes moral or normative properties.

The author analyses carefully several arguments defending the purely descriptive notion of law and some of the arguments defending a partial normative definition. His main conclusion is that there is a common assumption in both positions, namely, that there must be only one absolute concept of law.

Once the essentialist prejudice in abandoned, Nino thinks that both concepts —normative and descriptive— do not exclude each other. According to the context and the problems one seeks to discuss there could even be a plurality of concepts of law available.

[J. Esquivel]
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