Implicit Norms and De-Positivisation. Solutions, Dissolutions, Open Issues

Abstract

The “explicit/implicit norms” distinction, originally formulated by RiccardoGuastini and today reformulated by Damiano Canale, presupposes another, previous, and far-reaching distinction: the “norm-formulation/norm” one. In the secondand third section, I try to contextualize the emergence of “norm-formulation/norm”distinction to the codification process, and the distinction explicit/implicit norms to the constitutionalization process, respectively. In the fourth section, the “explicit/implicit norms” distinction is further reformulated; then it is sharply distinguished from the “expressed/unexpressed norms” distinction; and finally it is explained by reference to an ongoing legal process I call “de-positivization” of law. In short, such contextualizations lead to the dissolution of the “explicit/implicit norms” problem, to a new distinction between implicit and unexpressed norms, and open two interrelated problems: unexpressed principles and the de-positivization of law itself.