Abstract

Since the 1960s, following Norberto Bobbio, it has been customary (or ought to be) to distinguish between (a) methodological, (b) theoretical and (c) ideological legal positivism (LP). In the Italian legal philosophical literature, LP is often contrasted with legal realism (LR). However, the question arises as to what kind of LP and what kind of LR we are talking about. (i) As far as LR is concerned, scholars who argue against realism to positivism think mainly of Scandinavian Realism, especially Olivecrona and Ross. This is surprising in two respects. On the one hand, Olivecrona shares the methodological side of LP – the view that science (including legal science) is a value-free empirical enterprise concerned only with observable phenomena. On the other hand, Ross is a strong defender of the methodological LP – both against Kelsen’s concept of validity understood as binding force and against Hart’s “internal point of viewµ. (ii) As to LP, those scholars who oppose realism to positivism have in mind either the prevailing 19th century theory of law or Kelsen’s pure theory. The opposition between LR and pure theory is well-founded. Nevertheless, this opposition does not result from a supposedly anti-positivistic stance of LR. It is based on two non-positivistic theses that Kelsen advocated: the concept of validity as bindingness and the normative theory of legal science, which is conceived as a set of deontic (non-factual) sentences that reflect valid (i.e. binding) norms. The opposition between LR and 19th century LP is equally sound, but does not hold when applied to contemporary LP, which is understood primarily as a methodological (Benthamite) attitude towards the law. LR is an openly positivistic view of law. Certainly not all positivist legal scholars are realists, but all realists are (“hardµ) positivists.