¿Profundización o caída del realismo jurídico como teoría descriptiva de normas?

Abstract

Deepening or Falling of Legal Realism as a Descriptive Theory of Norms?

Some versions of legal realism seek to reconcile the claim that law is a set of rules with a commitment to empiricism. According to the latter, law is not constituted by abstract entities of any kind, but by facts instead. Embracing this orientation, Riccardo Guastini has defended a conception of normative propositions, i.e. existential assertions about legal norms, as necessarily referring to certain facts. Specifically, law is conceived as a set of texts that are the result of stable, consolidated and dominant interpretations that judges have carried out in their decisions. Starting from this version of legal realism, this work tries to cast some doubts. First, on this way of conceiving normative propositions. Second, on the way in which, as a consequence, legal theory is understood. Third, and more generally, on the claim to reconcile the view of law as a set of rules with the empiricist thesis.