A Constructivist Conception of Legal Norms

MARIA CRISTINA REDONDO (AUTORA)

Analisi e diritto

Marcial Pons

Lugar: Madrid-Barcelona; Año: 2013 vol. 2013 p. 185 - 196

1126-5779

This article is a revised version of a paper presented in a Symposium in honor to Eugenio Bulygin. 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 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 of the existence of legal norms. If my reasoning is correct, this conception is apt to explain those statements expressing the normative fact that a norm has legal existence or is legally valid.