Tarello Institute for Legal Philosophy

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:: Events :: A workshop on The Positivist Account and the Challenge of New Constitutionalism will take place at the 2021 Conference of the International Society of Public Law on July 8, 2021. Participants include Nicoletta Bersier Ladavac, Sofya Koval, Monika Zalewska, Wei Feng, Santiago Ortega, and Alessio Sardo, who is also the workshop convener. Here is a short description:

Legal positivism is one of the bedrocks of modern legal thought in Europe. In more recent times, the positivist accounts of constitutional law have been the object of a lively debate in the U.S. legal culture, too. The core of legal positivism is the separability thesis, which claims that the constitutional law can be explicated  
independently of morality. Positivism has been the target of myriad attacks. Critics have claimed that: first, legal positivism does not answer the question of how obedience to the constitution might be justified; second, constitutional law is necessarily subject to moral constraints; third, legal orders have an ideal dimension; fourth, the  
ultimate criteria for legal validity encompass moral elements. Within the non-positivist tradition, many authors invoke a moralization of constitutional theory. If constitutional law is positive law, the norms of a legal order are only “created” through human acts. But legal orders seem to endorse objective principles that protect human  
rights, whose existence appears to be independent from their enactment. What’s more, the notion of legitimacy and the integration of national states into supra-national institutional structures seem to endanger the idea of a hierarchical structure. New Constitutionalism fosters the adoption of non-positivistic forms of constitutional argumentation. If this is the state-of-the-art, we might legitimately ask ourselves: is this the end of legal positivism  
as a model for constitutional law? The separability thesis can resist to the challenge of New Constitutionalism? These are precisely the questions that our workshop will address. 

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