The Policy of Law : A Legal Theoretical Framework
Abstract: This work aims at framing, from a normative perspective, a field in which to locate one of the means of allowing politics to become law: the policy of law. The first part is devoted to the exploration of the relationship between law and politics as considered by major current schools of legal theory, such as legal positivism (Kelsen), analytical jurisprudence (Hart), Finnis’ natural law theory, American and Scandinavian legal realism, Critical Legal Studies and Law and Economics. Three ideal-typical models of the relation between law and politics are proposed: the “autonomous,” “embedded” and “intersecting” models.In the second part of this work the attention focuses on one of the regions of interaction in which law and politics meet, the transformational moment. This moment is defined as the stage in the law-making process at which the values produced inside the political arena are transformed into legal categories and concepts. A model for explaining the position and functions of the transformational moment in the law-making process is presented, the result of a progressive refinement of the basic ideas as to how the law-making process works. This model demonstrates how a space can be opened in the law-making activities between the formation of values in the political world (the politics of law) and the impact of the newly-made law on the community (the legal policy outcomes).This space is defined as the “policy of law.” The policy of law is then characterized as the stage of the law-making process in which values entrenched in political decisions are transformed into legal concepts in order to modify the existing legal system. The space labeled as policy of law today is mainly (but not exclusively) the domain of the legal actors. Consequently, an identification of a branch of the legal discipline specifically devoted to the investigation of the transformations of values into law is given: the policy of law analysis. Finally, whether and to what extent the policy of law analysis can be encompassed within the traditional legal discipline and, more particularly, as a part of jurisprudence, is explored.
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