Between natural law and positivism towards legal hermeneutic

Abstract

Overcoming the old contest between natural law and legal positivism leads us to argue that the proper law is always a problematic issue, which is shown as a process that never ends. The dualistic separation between being and ought to be is the result of an abstraction and in legal reality, such antagonism does not occur. Therefore this old methodical dualism between being and ought to be has to be overcome and we must abandon the thesis that law is identical to legal rules. Law has to be understood from the hermeneutical point of view, based on the living historical language. In this sense, legal interpretation seeks to avoid the illusion that the application of law is an exact subsumption of case law. To understand a linguistic text, and also a law, there always has to be a prior understanding, without which the judge never could make the law and the case correspond. But this is not to vindicate judicial subjectivism, but only affirms that there is no correction of law outside the specific process that must arise from reflection, argumentation, intersubjectivism and consensus of the participants.