“Il lato oscuro del diritto “in context”: il diritto ex parti populi come nuovo paradigma”

I define the “dark side” of law by contrast to its “light side” as it is framed by the “logicist-positivist paradigm” based on the identity between normative text and norm. This identity has been considered implausible by legal philosophers over the last seventy years. Nevertheless, the paradigm continues to be handed down. According to Kuhn’s theory, this is because legal theory has been unable to develop an alternative paradigm. In fact, the logicist-positivist paradigm appears inextricably linked to the liberal-democratic one: a law-making judge denies the rule of the people through the legislature. To elaborate a new paradigm, able to recover, in the current context, the fundamental values of “democratic societies”, we should conceive law non longer as regulative of people’s behaviour, but of public power and see the judiciary as the body in charge of turning the personal troubles of marginalised and socially abandoned citizens into legal problems.