Analisi e Diritto 2021-03-23T08:39:56+01:00 Analisi e Diritto Open Journal Systems <p>«Analisi e Diritto» is a six-montly, double blind peer-reviewed journal on analytic studies in Law and Philosophy of law.</p> Introduction 2021-03-23T08:34:03+01:00 Luca Malagoli <p>Section introduction. Open access content. Abstract not available.</p> 2021-02-02T00:00:00+01:00 ##submission.copyrightStatement## The Populist Format. What is it, Why is it there, How to Fix it 2021-03-23T08:35:42+01:00 Mauro Barberis <p>Current populisms have little to do with “historical” populisms (Russian, American and Latin-American): they are a global and an essentially mediatic phenomenon. By updating the results of two recent books – M. Barberis, <em>No Security Without Freedom</em> (2017) and Id., <em>How Internet Is Killing Democracy</em> (2020) – the populism’s issue is examined here in its three main features: analytical (conceptual, definitory), empirical (psychological, mediatic) and even normative (possible remedies) dimensions.</p> 2020-12-22T00:00:00+01:00 ##submission.copyrightStatement## Time and Dynamics of Legal Systems 2021-03-23T08:36:16+01:00 Sebastián Agüero-SanJuan <p>A central feature of modern law is its dynamic nature, that is to say, even though its contents varies from introducing acts to removing of regulations throughout time, its identity remains unalterable. At the legal theory level, this feature has pro- voked a great number of debates on how to develop the reconstruction respecting the notion of the unity, change and identity. Although in each explanation, the no- tion of the system plays a central role. In this sense, within the theory of law in the recently 100 years, three proposal have set milestones in the manner in which the dynamic nature of the legal systems is rebuilt. These are the works of Adolf Merkl, Joseph Raz and, since some decades ago, the proposals about the revision of the beliefs on the sets of beliefs. Thus, this paper aims to conduct a schematic review of these milestones, focusing on how to explain the dynamic nature of law, and then obtain some conclusions regarding the notions of unity, change and time along with specifying some of the relations among each other.</p> 2020-12-22T00:00:00+01:00 ##submission.copyrightStatement## Critical Remarks on the Concept of Applicability as an Explanation of the Phenomenon of the Application of Irregular Legal Norms 2021-03-23T08:36:36+01:00 Marcela Chahuán Zedan <p>In this work I make some critical comments on the concept of applicability as explanation to the phenomenon of application of rules irregularly enacted. Even though it is a useful conceptual tool that explains some elements of legal systems, it omits a central feature that is necessary to thoroughly give account to the phenomenon I refer. Indeed, the production of effects by rules that might be interpreted as irregular is a phenomenon closely related to the institutional design of legal systems in relation with mechanisms that control the regular enactment of rules.</p> 2020-12-22T00:00:00+01:00 ##submission.copyrightStatement## Legality on the Frontlines of Administrative Decision-Making 2021-02-02T15:35:03+01:00 Matjia Žgur <p>In this essay, the author deals with the decision-making practices of frontline administrative officials. In particular, he examines how administrative circulars become the primary source of these officials’ decision-making norms, even when their content may be in contrast with hierarchically superior sources of law. The disposition of frontline officials to resort primarily to internal orders of hierarchically superior officials is explained as a consequence of the joint influence of several organizational principles upon their mental faculties. After introducing the problem and its relevance for legal theory, the author first defends the methodological approach to which he subscribes. Thereafter, he presents the central categories and organizational principles framing the institutional operations of public administrations. Finally, he provides a psychologically-informed explanation of the influence exerted by these principles upon the mental faculties of frontline officials which underpin the latter’s preference for the use of administrative circulars as primary sources of decision-making norms.</p> 2020-12-22T00:00:00+01:00 ##submission.copyrightStatement## The Legislative Notion of Consumer: A Legal Philosophical Contribution 2021-03-23T08:39:56+01:00 Adriano Zambon <p>The aim of this paper is to propose a legal-philosophical argument regarding the interpretation of an important legislative definition of consumer in the Italian legal system. After a description of the main interpretations of this definition, it will be claimed that the interpretation to be preferred is the one that guarantees a stronger connection between the meaning ascribed to the legislative definition and the main meaning that the defined term has in ordinary language. The reason for this preference is to be found in the preservation of the connection between legal language and ordinary language, which is necessary for a legal system to work well.</p> 2021-02-02T00:00:00+01:00 ##submission.copyrightStatement## Hans Kelsen as a Political Realist: Notes for a Classification 2021-03-23T08:37:23+01:00 Giovanni Damele <p>Kelsen’s political philosophy is today considered a classic of twentieth-century liberal democratic thought and is rarely associated with the tradition of political realism. However, they share some essential traits, such as elitism, relativism and a markedly descriptive and demystifying approach to the study of political phenomena. Along with these aspects, already underlined in various ways, it is necessary to add another that emerges in Kelsen’s philosophical-political texts. This aspect is a negative anthropology which, on the one hand, distinguishes his approach from any rationalistic optimism, and in particular from that of liberal reminiscence; and on the other hand, justifies his option in favor of the “rule of law” against the “rule of man” which, in spite of the alleged distinction between “theory” and “politics”, intimately links Kelsen’s political philosophy and legal theory.</p> 2020-12-22T00:00:00+01:00 ##submission.copyrightStatement## On the Relations between Non-Cognitivism and Liberalism 2021-02-02T15:53:02+01:00 Riccardo Guastini <p>In the first part of the paper, the author outlines a non-cognitivist meta-ethics based on the is-ought distinction and Hume’s guillotine. Nonetheless, the author maintains that logical reasoning is possible also in the ethical domain. Value-judgments and normative sentences, although lacking truth values, can be proved within a (moral, legal, or political) normative system on the basis of the accepted normative premises of the system at stake. Any inferential move, however, cannot but stop when reaching the “supreme principle” of the system. In the second part of the paper, the author claims for a non-logical, pragmatic, connection between meta-ethics and normative ethics, viz. between non-cognitivism and liberalism. Liberal ethics, understood as the ethics of tolerance, provides good pragmatic reasons for joining non-cognitivist meta-ethics, and vice versa, while non-liberal intolerant ethics, in turn, provides good pragmatic reasons for joining a cognitivist meta-ethics, and vice versa.</p> 2020-12-22T00:00:00+01:00 ##submission.copyrightStatement## On a Further Difficulty for the Bridge Conception of Conditional Norms 2021-02-02T15:57:34+01:00 Giovanni Battista Ratti Jorge L. Rodríguez Tobías Schleider <p>In this article, we briefly expose and analyze a difficulty that the so-called bridge conception of normative conditionals must face concerning some possible applications of the principle of conditional distribution to the normative domain.</p> 2020-12-22T00:00:00+01:00 ##submission.copyrightStatement## Mind the (Legal) Gap. Completeness and Closure of Normative Systems 2021-03-23T08:38:30+01:00 Andrea Barca <p>In <em>Normative Systems,</em> Alchourrón and Bulygin showed that the alleged necessary completeness of any legal order cannot be grounded on the so-called “principle of prohibition” (according to which everything that is not expressly forbidden is, implicitly, permitted). In recent works, Ruiz Manero and Bayón have argued that this principle (once properly reinterpreted) expresses a (true) belief shared by the majority of contemporary lawyers, namely that any legal system is “metonymically” complete (because secondary systems – i.e. sets of norms of adjudication – are always complete).</p> <p>In this work, I examine some arguments in favor of the necessary completeness of secondary systems. My thesis is that secondary systems are not necessarily (for logical and conceptual reasons) complete; the contrary view is, in my opinion, based on the failure to differentiate between: (i) either norms and norm propositions or (ii) regulative and constitutive norms.</p> 2020-12-22T00:00:00+01:00 ##submission.copyrightStatement##