Analisi e Diritto https://journal.edizioniets.eu/index.php/aed <p>«Analisi e Diritto» is a six-montly, double blind peer-reviewed journal on analytic studies in Law and Philosophy of law.</p> en-US <p>Copyrights are transferred for five years starting publication date from the author(s) to the Publisher. After this period, the content is released under a Creative Commons licence (<a title="CC BY-SA 4.0" href="https://creativecommons.org/licenses/by-sa/4.0/" target="_blank" rel="noopener">Attribution-ShareAlike 4.0 International</a>).</p> analisiediritto@istitutotarello.org (Analisi e Diritto) giovanni.campolo@edizioniets.com (Giovanni Campolo) Wed, 17 Nov 2021 00:00:00 +0000 OJS 3.1.1.4 http://blogs.law.harvard.edu/tech/rss 60 Eugenio Bulygin. In memoriam https://journal.edizioniets.eu/index.php/aed/article/view/355 <p>This monographic section contains six writings in memory of Eugenio Bulygin. The first contribution, by Ernesto Garzón Valdés, originally published in 1998 and reprinted on this occasion, is dedicated to some features of the personality of Eugenio Bulygin. The other contributions deal with different aspects of his scientific and human legacy and range from the memory of some anecdotes and profiles of Eugenio’s character to the identification of his main theses in the fields of legal theory, metaethics and deontic logic.</p> Ernesto Garzón Valdés, M. Cristina Redondo, Paolo Comanducci, Riccardo Guastini, Giovanni Battista Ratti, Pierluigi Chiassoni ##submission.copyrightStatement## https://journal.edizioniets.eu/index.php/aed/article/view/355 Fri, 12 Nov 2021 00:00:00 +0000 Introduction https://journal.edizioniets.eu/index.php/aed/article/view/356 <p>Themed secton introduction.</p> <p>Abstract not availabe.</p> Luca Malagoli ##submission.copyrightStatement## https://journal.edizioniets.eu/index.php/aed/article/view/356 Wed, 17 Nov 2021 00:00:00 +0000 El concepto de derecho subjetivo. Las diversas caras de un concepto poliédrico https://journal.edizioniets.eu/index.php/aed/article/view/357 <p>The purpose of this paper is to confront the conception of rights defended by Kelsen in his <em>General Theory of Norms</em> with the approaches defended by Hohfeld, Hart, and Dworkin. In my opinion, the contrast between Kelsen’s conception about rights and the proposals of these other three authors can help us to better understand why the assumption of certain theoretical presumptions regarding the nature of law commits Kelsen to the adoption of a certain strategy on clarifying the concept of rights. Also, this contrast between conceptions of rights will allow me to defend the idea that a <em>right</em> is a <em>polyhedral</em> concept, as well as to put forward a proposal on the main planes that should integrate its analysis.</p> Ángeles Ródenas ##submission.copyrightStatement## https://journal.edizioniets.eu/index.php/aed/article/view/357 Fri, 12 Nov 2021 00:00:00 +0000 Hans Kelsen’s “Allgemeine Theorie der Normen” and Power-Conferring Norms: Adolf J. Merkl’s Final Victory https://journal.edizioniets.eu/index.php/aed/article/view/358 <p>The legal discourse includes sentences that relate to the capacity to produce new legal entities and to the validity of the ensuing entities. In order to deal with these entities, legal scholars have to craft appropriate concepts. Kelsen’s initial individuation of the legal norm was based on the following scheme: “If certain conditions are met, then coercion ought to be used by the states’ organs”. Insisting on the mandatory character of norms, whose unique function is to create obligations, Kelsen considered that the other functions of legal sentences, like power-conferring, are merely apparent. They may be reduced to the obligation-imposing one if they are understood as mere fragments of norms properly so-called or, as Kelsen proposed in the <em>Allgemeine Theorie der Normen</em>, as indirect ways to impose obligations. But this posthumous book also offers another theory of power-conferring sentences, whereby these are understood as full-blown legal norms. On the one hand, this major change in Kelsen’s ontology of law is based on a shift from Kantianism to empiricism in his conception of legal science. On the other hand, it results from the unsuspected consequences of Kelsen’s adoption of Adolf J. Merkl’s <em>Stufenbaulehre</em>. Just like Merkl was led to distinguish between two kinds of norms, Kelsen was conceptually constrained by the internal dynamics of this conception of the legal system that was alien to his initial theory to revise his individuation of legal norms. Only at the end of his life did he seem fully conscious of the consequences of Merkl’s theory.</p> Guillaume Tusseau ##submission.copyrightStatement## https://journal.edizioniets.eu/index.php/aed/article/view/358 Fri, 12 Nov 2021 00:00:00 +0000 Efficacy as a Condition of Validity in Kelsen’s “General Theory of Norms” https://journal.edizioniets.eu/index.php/aed/article/view/359 <p>The paper aims to reconstruct and critically analyse efficacy as a condition of validity in Hans Kelsen’s <em>General Theory of Norms</em> both in the light of his newly introduced distinction between the conditional and full validity of a norm and the dynamic aspect of the legal order. It also aims to give a systemic account of efficacy as a condition of validity of both general and individual legal norms, taking into account the temporal aspect of validity, i.e., the moments in which a norm becomes valid and ceases to be valid, and the time span during which it remains valid. The paper first outlines Kelsen’s understanding of the concept of efficacy (Section 2). It then analyses and reconstructs the efficacy condition as a condition for the beginning of a legal norm’s validity (Section 3), and goes on to analyse and reconstruct the efficacy condition as a condition of the end of a legal norm’s validity. Finally, the paper systematizes the conditions under which the general hypothetical sanction-decreeing legal norm and the individual hypothetical and categorical sanction-decreeing legal norms acquire and lose their validity (Section 5).</p> Luka Burazin ##submission.copyrightStatement## https://journal.edizioniets.eu/index.php/aed/article/view/359 Fri, 12 Nov 2021 00:00:00 +0000 A Path that Forks. Legal Science between Is and Ought https://journal.edizioniets.eu/index.php/aed/article/view/360 <p>Distinguishing between law and legal science –between legal norms and the juristic description of norms– is a crucial point for the pure theory. Nonetheless, Kelsen seems unable to give a consistent and satisfactory account of both the wording and the logical form of legal statements (or propositions of law), that is, the sentences by which legal scholars are supposed to describe the law. In particular, he cannot decide whether legal statements are empirical (is-) or normative (ought-) sentences. This is especially clear in his posthumous <em>General Theory of Norms</em>.</p> Riccardo Guastini ##submission.copyrightStatement## https://journal.edizioniets.eu/index.php/aed/article/view/360 Fri, 12 Nov 2021 00:00:00 +0000 The Explanatory Problem of Law’s Normativity: A Proposal Based on Practical Attitudes and Normative Statuses https://journal.edizioniets.eu/index.php/aed/article/view/361 <p>The aim of this article is to analyse the explanatory problem of law’s normativity and to provide a novel solution to it. In a nutshell, this is not a practical problem, but a <em>theoretical</em> problem that consists in distinguishing, explaining and relating two common claims taken as ascertained: that the law is both a matter of facts and a matter of norms. The strategy of this work begins by distinguishing three fundamental problems, which I consider are implicit in the problem of law’s normativity: the infinite regress of interpretations, the gerrymandering, and the individual criterion. It continues by offering a satisfactory answer to each of them. It then ends by showing how the explanatory problem of law’s normativity can be solved. The solution appeals to three distinctions, four technical notions, and three conditions of adequacy to explain general normativity, which are crucial to distinguish, explain and relate, in an adequate manner, the factual and the normative dimensions of law.</p> Pedro Caballero Elbersci ##submission.copyrightStatement## https://journal.edizioniets.eu/index.php/aed/article/view/361 Fri, 12 Nov 2021 00:00:00 +0000 Pragmatics of accusation and the concept of trial. A preliminary analysis https://journal.edizioniets.eu/index.php/aed/article/view/362 <p>This work aims to provide a contribution to the analysis of the concept of trial, considered independently of the specific ways in which positive law constructs its trials, and independently of the conceptions of justice that condition the legislative choices. The working hypothesis followed here is that it is possible to investigate the conditions of possibility of trials by moving from the perspective of a particular legal act, found in certain trials: the act of accusation. The analysis of such an act will show: (i) the close relationship (of a necessary kind) that exists between this act and that of judging, which concludes the trial; (ii) the relationship (of a tendential kind) that exists between the accuser and the accused.</p> Marco Q. Silvi ##submission.copyrightStatement## https://journal.edizioniets.eu/index.php/aed/article/view/362 Fri, 12 Nov 2021 00:00:00 +0000