Il diritto futuro e la sua de-positivizzazione

Abstract

In order to imagine the law’s future, we need reconstruct its past. The evolution of law in western countries disclaim a process of positivization: the law become and it is conceived as positive, i. e. less or more contingent, available for change. In more recent areas of law, such as constitutional, international and European Union’s law, However, inverses processes occur: the de-positivization of law. In constitutional case-law, in particular, an ever more crucial role is played by implicit norm as equality, reasonabless, proportionality. These principles are positive only in a very weak sense of the term: in reality, they are only a part, and a necessary part of the very concept of distributive justice.