The aim of the paper is that of putting into question the dichotomy between fact-judgments and value judgments in the legal domain, with its epistemological presuppositions (descriptivist image of knowledge) and its methodological implications for legal knowledge (value freedom principle and neutrality thesis). The basic question that I will try to answer is whether and on what conditions strong ethical value-judgments belong within legal knowledge. I criticize the traditional positivist positions that have fully accepted the value-freedom principle and value-neutrality thesis, (...) but I also submit to critical scrutiny the new post-positivist views, that, even if they show interesting conceptual developments on the matter, end up, nevertheless, by presupposing the same epistemological image, while I call descriptivism. I stress that only by giving up descriptivism and accepting constructivism as a general image of knowledge is it possible to see the problem of value-ladenness of legal knowledge in a new light. On the basis of the constructivist image, I present two theses: firstly, at a much broader epistemological level, I advance the minimalist thesis on value-judgments, which simply removes the general ban on treating values as present within knowledge; secondly, I advance the strong thesis on legal value-judgments, which consists in arguing for the necessary presence of ethical value-judgments in legal knowledge. I draw, in the end, some important implications from acceptance of the strong thesis. One of these implications is a new distinction that replaces the traditional distinction between fact-judgments and value judgments, namely, the distinction between value-judgments exhibiting a cognitive function and value-judgments exhibiting a creative function. (shrink)

The aim of the paper is that of putting intoquestion the dichotomy between fact-judgments andvalue judgments in the legal domain, with its epistemologicalpresuppositions (descriptivist image of knowledge) andits methodological implications for legal knowledge (valuefreedom principle and neutrality thesis). The basicquestion that I will try to answer is whether and on whatconditions strong ethical value-judgments belong withinlegal knowledge.I criticize the traditional positivist positionsthat have fully accepted the value-freedom principle andvalue-neutrality thesis, but I also submit to critical scrutinythe new post-positivist views, that, (...) even if they showinteresting conceptual developments on the matter, end up,nevertheless, by presupposing the same epistemologicalimage, while I call descriptivism. I stress that only by giving updescriptivism and accepting constructivism as a generalimage of knowledge is it possible to see the problem ofvalue-ladenness of legal knowledge in a new light.On the basis of the constructivist image, I present two theses:firstly, at a much broader epistemological level, I advance theminimalist thesis on value-judgments, which simply removes thegeneral ban on treating values as present withinknowledge; secondly, I advance the strong thesis on legalvalue-judgments, which consists in arguing for thenecessary presence of ethical value-judgments in legal knowledge.I draw, in the end, some important implications from acceptanceof the strong thesis. One of these implications isa new distinction that replaces the traditional distinctionbetween fact-judgments and value judgments, namely, thedistinction between value-judgments exhibiting a cognitivefunction and value-judgments exhibiting a creativefunction. (shrink)

In this paper I put forward some arguments in defence of inclusive legal positivism . The general thesis that I defend is that inclusive positivism represents a more fruitful and interesting research program than that proposed by exclusive positivism . I introduce two arguments connected with legal interpretation in favour of my thesis. However, my opinion is that inclusive positivism does not sufficiently succeed in estranging itself from the more traditional legal positivist conceptions. This is the case, for instance, with (...) regard to the value-freedom principle, which is commonly accepted by inclusive positivist scholars. In contrast with this approach, I try to show, in the concluding section, how a constructivistic version of inclusive positivism could legitimately acknowledge the presence of value-judgments in the cognitive activities of jurists and legal theorists. (shrink)

Normal 0 21 false false false ES-CO X-NONE X-NONE MicrosoftInternetExplorer4 /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Tabla normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-qformat:yes; mso-style-parent:""; mso-padding-alt:0cm 5.4pt 0cm 5.4pt; mso-para-margin:0cm; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri","sans-serif"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:"Times New Roman"; mso-fareast-theme-font:minor-fareast; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi;} In this paper, first, I will try to give a conceptual definition of relativism, with the aim of singling out the basic elements common to the most relevant relativist conceptions. I will qualify as “relativistic” all conceptions (...) in which all or a relevant part of its criteria and beliefs necessarily depend on a given context. Secondly, I will deal with some critical observations against relativism. From this point of view, a problem arises from the fact that many relativists would like to have the chance ofexpressing some objective judgments. Lastly, I will propose a relativistic conception: one that doesn’t incorporate absolutist elements at all and nevertheless could be able to explain the presence of a common core of criteria and beliefs in all our conceptual schemes and beliefs. Two distinctions are important here: first, local conceptual schemes and long term frameworks, and second, environment and world. This last distinction makes possible to speak, even inside a coherent relativist epistemological conception, of the existence of an objective reality. (shrink)