Abstract
Legal positivism, new constitutionalism and bioethical issues
This article analyzes the two prevailing orientations associated with the interpretation
of the juridical norms in the doctrine and jurisprudence of the 20th century, whose
influence spreads up to our days. The theoretical framework of legal positivism is
described with specific focus on the “pure theory of law” elaborated by Hans Kelsen.
This school is contrasted with new constitutionalism, a doctrine that is analyzed starting
from the work of Ronald Dworkin up to that of its main Italian epigones, especially
professor Gustavo Zagrebelsky, theorist of “meek law”. A right based on rules
(envisioned by the legislator) is accompanied by a right based on principles (envisioned
by the judges on the basis of the “concrete cases” they are called to resolve). Two
concrete cases within the Italian jurisprudence are then analyzed: the Welby case and
the Cappato case.
Titolo tradotto del contributo | [Autom. eng. transl.] Legal positivism and neo-constitutionalism faced with bioethical questions |
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Lingua originale | Italian |
pagine (da-a) | 645-668 |
Numero di pagine | 24 |
Rivista | BIOETICA |
Volume | XXVI |
Stato di pubblicazione | Pubblicato - 2018 |
Keywords
- Legal positivism
- new constitutionalism
- bioethics
- Welby
- Cappato.