FORMAL AND RETICULAR THEORIES OF LAW: DIFFERENT MODELS TO EXPLAIN THE COMPLEXITY OF NORMATIVE REALITY

Abstract This thesis deepens the explanatory models of the legal orders and the normative phenomena, especially the traditional one, symbolically represented by the “pyramid”, and the more recent one, depicted as a “net”. Its purpose is to critically connect some theoretical paradigms respectively conceived by the formalistic legal culture and the socio-legal one to understand whether one of them is more suitable than the others to represent and even orient the current normative scenario. Hence, on one hand, this paper faces the theories of Hans Kelsen, Norberto Bobbio, and Luigi Ferrajoli, while, on the other hand, it mainly addresses the ideas of François Ost, Michel Van de Kerchove, and Bruno Latour. By studying their different features, some of their strengths and weaknesses, this contribution shows that some elements of each model can be useful and suitable either for explanatory reasons or for outlining a desirable axiological horizon, thus opening the path to the search for hybrid solutions. Whereafter, the present work considers the process of globalisation, also in the light of Cassese’s posture, and its recent shortcomings to raise a parallel either with the net or the pyramid, as well as it points out some jurisdictional phenomena that may be envisioned either in pyramidal or reticular terms. Eventually, this paper spotlights the recursive-structural crisis between the two paradigms here analysed and thus their dialectic co-presence within the legal science scenario, critically drawing some categories from Thomas Kuhn’s philosophy of science. Then, a certain amount of vertical hierarchy in the relations among legal norms and the various sources of law is still recommended, both at an ontological-descriptive and and axiological-prescriptive level. Especially to protect those ethical-political values and principles sanctioned in contemporary constitutions, as fundamental rights and freedoms, against the possible horizontal normative “anarchy” of a completely flat legal world.