Diritto posto, diritto creato: una analisi del positivismo giuridico dal punto di vista della teoria del diritto come artefatto

The legal-positivistic idea that law is the outcome of legislative enactment entails, as its ontological counterpart, the idea that law is an artifact, an object created by human beings for specific purposes. In this paper, I will discuss this connection at the core of the “positivistic dream”. First, I will develop a socio-ontological analysis of the “positivistic dream” and of its assumptions in terms of three metaphysical relations (existential dependence, supervenience, and grounding) and I will show that legal positivism implies an over-inclusive conception of authorial intention. I will also try to show the relevance of the "positivistic dream” by applying the same kind of analysis to customary law. In the second part of the paper, however, I will argue that this relevance and role of legal positivism does not inevitably entail the authorial model of artifacts that it assumes. Another model of artifacts can instead be assumed and turns out to be more fruitful, namely, a model based on the concept of “deliberative history” that, when applied to legal institutions, shows not the inevitability of the “positivistic dream” but rather the necessary dialectics between legal positivism and legal realism. Finally, in the third part of the paper, I will enquire into a possible relation between an artifact theory of law and natural law theory, by showing how this relation, here described in terms of a phenomenon called “institutional mimesis”, can lead to a sort of descriptive natural law theory.