Teoria artifattuale del diritto e ideologie giuridiche
DI MARCO Q. SILVI
ABSTRACT – Artifactual theories of law – such as the one proposed in Italy
by Corrado Roversi – evoke the idea of the artificiality of law, an aspect
typically connected to its positivity; so much so that someone has reduced
this theory to a mere positivist doctrine. In my opinion, however, the
explanatory power of the conceptual apparatus offered by artifactual theory
goes beyond the aspect of positivity of law. To this end, I test this conceptual
apparatus with reference to two phenomenal areas normally emphasized
by anti-positivist legal doctrines: (i) the creative activity deployed by judges
– an aspect on which the various forms of legal decisionism rely; and (ii) the
customary law – a case in point for those sociological and realist
perspectives that emphasize the spontaneous formation of law.
KEYWORDS – Law as an artifact – legal realism – legal decisionism –
customary law – social ontology