Enrico Scoditti

Courts and Charters of Rights: Law as Potentiality

  • Abstract

Informations and abstract

Keywords: Rule of Recognition, Judge, Fundamental Rights, Balancing, Potentiality.

The basic norm of legal order is not the charter of fundamental rights, but the balancing of rights formulated as principles. Each single case has its own basic norm. Balancing is not an expression of the judge's extra-legal values as legal realism maintains. Hart's theory of the rule of recognition makes it possible to confute the argument from legal realism. The basic norm as a socially existing rule is followed de facto and not in compliance with a further rule. When balancing principles judges follow de facto specific basic norms. Following basic norms de facto, that is spontaneously, implies a potentiality with regard to law.

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