“A Legal Pluralist World”… Or the Black Hole for Modern Legal Positivism

Abstract

In addition to the traditional attacks from competing legal theories (from natural law to postmodern approach), modern legal positivism seems to be placed at a point of no return when looking at the effects of globalization upon the legal phenomenon. The reality offers to legal positivists countless examples of soft-law, i. e. law which is not law but is perceived and applied by the vast majority of the legal actors as law. Faced with this radically changed reality, most contemporary legal positivists appear to be caught in a dilemma. The modern legal positivism, on one hand, is in front of a reality of legal globalization and increasing legal pluralism in many areas of law, that is a reality (e. g. soft-law) challenging some of the fundamental paradigms endorsed by this legal movement (e. g. the pedigree thesis). On the other hand, modern legal positivists have taken a quite passive attitude toward this challenge, either by abandoning the legal positivism as a whole to its destiny or by simply continuing to focus upon traditional (i. e. pre-globalization) issues as the fundamental ones to be tackled. The goal of this work is to suggest a shift of attention among legal positivists towards questions which have always been present in their program (though often in secondary terms), as also their solutions (often already present in the legal positivist works). This shift would possibly help the legal positivism movement to circumvent the black hole represented by legal globalization (and its legal pluralism), a black hole where the distinction between law and non-law (i. e. the major tenant of legal positivism) seems to vanish, putting the very existence and legitimacy of the legal phenomenon under question.