Ontologie : Teoria del diritto e retorica : Un’analisi strutturale sottile

Is the legal system a set of rules? Is it conceivable as a kind of external object, made by data, which the researcher must account for in a neutral way? Obviously not. This is only the legacy of the old nineteenth-century positivism. Thus, the theory of law, with its structural constructions, is not independent of argumentative techniques. The rules are the result of an interpretative debate. More than an order with a certain architecture (pyramid, network, etc.), closed or open, we should speak of an order that is in the making. The system appears closed when exclusive reasons is used (formalisms, such as hierarchy and the judged); we reopen it using inclusive reasons (weighting and reference to implicit principles). The theorist, from this perspective, could study the grammar of the different argumentative techniques used by jurists, their logic and the related compatibility relationships.

Nel contributo si cerca di rivisitare la retorica in un modo inconsueto per dar conto delle scelte che si aprono nella teoria del diritto.