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Le néoconstitutionnalisme existe-t-il ?

Abstract : To be sure, `Neoconstitutionalism' is a new name for a family of well-known theories of law: a name till now used only in "Latin" theory of law. But, contrary to Riccardo Guastini's recent criticism, and in compliance with a larger treatment of such a stance in my still more recent book Manuale di filosofia del diritto (2011), neoconstitutionalism does exist - just as well as natural law, legal positivism and legal realism do. In this contribution, in fact, three central topics of neoconstitutionalism are discussed - the law-morals connection, the rules/principles distinction and balancing or ponderation - in order to provide a better positivist theory of them. Here, in particular, a contingent but theoretically essential connection between law and morals is recognized; a quasi-hard distinction between legal rules and legal principles is admitted; a positivist, realist and value-pluralist theory of balancing is provided.
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Submitted on : Monday, November 27, 2017 - 10:08:34 AM
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Mauro Barberis, Pierre Brunet, Jérémy Mercier. Le néoconstitutionnalisme existe-t-il ?. Revus: Journal for Constitutional Theory and Philosophy of Law, Centre for Studies on Democracy and European Constitutionality, 2015, pp.101-124. ⟨10.4000/revus.3208⟩. ⟨hal-01648849⟩



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