'A Legal Pluralist World'… or the Black Hole for Modern Legal Positivism
24 Pages Posted: 15 Apr 2013 Last revised: 19 Jul 2015
Date Written: April 15, 2013
One can see how the modern legal positivism, on one hand, is in front of a reality of legal globalization and increasing legal pluralism in many areas of law, that is a reality (e.g. soft-law) challenging some of the fundamental paradigms endorsed by this legal movement (e.g. the pedigree thesis). On the other hand, modern legal positivists have taken a quite passive attitude toward this challenge, either by abandoning the legal positivism as a whole to its destiny or by simply continuing to focus upon traditional (i.e. pre-globalization) issues as the fundamental ones to be tackled.
In this respect, the goal of this paper is certainly neither to tackle these potential dangers hanging over the modern legal positivism’s future nor to rewrite the basic dogmas characterizing legal positivism. The goal is much humbler: to suggest a shift of attention among legal positivists towards questions which have always been present in their program (though often in secondary terms), as also their solutions (often already present in the legal positivist works). This shift would possibly help the legal positivism movement to circumvent the black hole represented by legal globalization (and its legal pluralism), a black hole where the distinction between law and non-law (i.e. the major tenant of legal positivism and, I would dare say, of the modern Western legal culture) seems to vanish, putting the very existence and legitimacy of the legal phenomenon under question.
In order to fulfill this task, this paper will start in Part One by describing what it means nowadays to have a legal positivist approach and in particular what its core message to the legal (and non-legal) community is. In this respect, Herbert L. A. Hart’s idea as to the nature and role of the rule of recognition will be briefly sketched. Once it has been established what being a legal positivist actually means, Part Two will present some of the reasons why the ongoing process of globalization, and the consequent establishment of a pluralist legal world, appears to threaten some of the fundamental tenants of modern legal positivism (or, as I will try to show, “supposedly fundamental” tenants). Finally, in Part Three, some changes of focus in the legal positivist program will be suggested, in order for this legal theoretical movement not only to be able to survive the challenges of the legal globalization but also in order for it to keep its predominant position among the legal actors in a pluralist legal world.
Keywords: Legal Positivism, Globalization, Legal Pluralism, Pedigree Thesis
JEL Classification: K00
Suggested Citation: Suggested Citation