The dark side of law ‘in context’: ex parte populi law as a new

Resumo

My strategy is to define the ‘dark side’ of law by contrast, starting from its ‘light side’. It seems to me that the latter can only be defined from what has been called the ‘logicist-positivist paradigm’ that identifies the clarity of law with the certainty of the judicial decision deduced from norms, assumed to have a clear meaning. This paradigm is based on the identity between normative text and norm, which has been commonly considered implausible by legal philosophers, but perhaps we could say by jurists, over the last seventy years. Nevertheless, the paradigm continues to be handed down and considered the framework for reflections on law. I argue, referring to Kuhn’s conception of a paradigm, that this is because the legal-philosophical thought of recent decades has been unable to develop an alternative paradigm, and I suggest that this is because the logicist-positivist paradigm appears inextricably linked to the liberal-democratic structuring of our legal systems: a law-making judge fundamentally denies the rule of the people through the legislature. As a starting point for the elaboration of a new paradigm, I propose a conception of law that is no longer regulative of people’s behaviour, but of public power. In it, the judiciary emerges as the interlocutor to whom one turns to transform the private troubles of marginalised and socially abandoned citizens into legal problems. I argue that this conception is able to recover, in the current context, the fundamental values of ‘democratic societies’.