The ontological foundations of legal theory

Abstract

This article starts from the idea that legal theory is only possible on clear ontological presuppositions well aware of the normative dimension of law and that can overcome the deformations of sociologists, textualists and logicians and iusnaturalists. The law is presented as a technique to govern and direct human behaviour, a concept from which it is possible to articulate two kinds of speculations: technology or anthropology. Technological speculation aims, on the one hand, at rationalizing modes of lawmaking, to assess existing modes, explore ways and means for more successful development and on the other hand, to systematize existing instruments to detect its potential uses and technical failures or socially harmful effects (legal doctrine). The anthropological approach seeks to study law as a cultural or human subject and notes, with explanatory vocation, the behaviour of legal actors and legal experiences. Both approaches are absent in the positivist conception of law, focusing more on the doctrinal analysis or science of law.