The essay criticizes Mark Greenberg's standard picture of law by stating that no one really defends this picture in legal theory. The Authors argue that the legal positivistic perspective is completely different from Greenberg’s perspective. According to Greenberg, we should start from what law really is and then say how legal actors (and especially legal interpreters) should act. By contrast, legal positivism starts with how legal actors (including legal interpreters) act and then says how the law is. Poggi and Gizbert-Studnicki argue that Greenberg has the burden to prove that what law is could be grasped regardless of what the legal actors actually do, yet his theory fails to do it. Consequently, what method of interpretation is correct does not depend on the answer to the question of which more basic facts metaphysically determine legal facts. This question is answered by a theory of validity, which is independent from any normative theory of interpretation.

The communication theory as a phantom / T. Gizbert-Studnicki, F. Poggi - In: Interpretivism and the Limits of Law / [a cura di] T. Gizbert-Studnicki, F. Poggi, I. Skoczeń. - [s.l] : Edward Elgar, 2022. - ISBN 9781802209310. - pp. 60-75

The communication theory as a phantom

F. Poggi
2022

Abstract

The essay criticizes Mark Greenberg's standard picture of law by stating that no one really defends this picture in legal theory. The Authors argue that the legal positivistic perspective is completely different from Greenberg’s perspective. According to Greenberg, we should start from what law really is and then say how legal actors (and especially legal interpreters) should act. By contrast, legal positivism starts with how legal actors (including legal interpreters) act and then says how the law is. Poggi and Gizbert-Studnicki argue that Greenberg has the burden to prove that what law is could be grasped regardless of what the legal actors actually do, yet his theory fails to do it. Consequently, what method of interpretation is correct does not depend on the answer to the question of which more basic facts metaphysically determine legal facts. This question is answered by a theory of validity, which is independent from any normative theory of interpretation.
standard picture; legal interpretation; legal positivism; Mark Greenberg
Settore IUS/20 - Filosofia del Diritto
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/2434/950818
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