SOBRE LA TEORÍA IMPERATIVISTA DE LA NORMA JURÍDICA

Abstract

Legal norm is the most basic element of Law as a cultural phenomenon. From a logic-formal point of view, a norm shows the structure of a conditional proposition: «If A, it ought to be B». In this proposition are included the essential elements of a norm: the facts of the case (A), the legal consequence (B) and the link or connection («ought to be»). This last element is the core of all doctrinal discussion about the nature of norm. The question is to clarify the meaning of the «validity order» («ought to be») which is essential to all legal norms. In this sense I have underlined the doctrine that conceives the norm as a mere imperative or command (imperativist theory). II. The imperative theory of norm is based on philosophical assumptions of relativism, nihilism and voluntarism. Power (potestas) is the last foundation of its validity and it has appeared historically in different ways, i.e.: 1.The imperative theory of law, of theological foundation: Ockham’s nominalism and voluntarism, negation of moral objectivism. 2. The imperative theory of law, of philosophicalpolitical foundation: political doctrines of Marsilio de Padua, Machiavelli, Bodin, Hobbes... In this case, the «summa potestas», an attribute of God, according to theological voluntarism, becomes, with the secularization of political order, an attribute of men under the name of «sovereignty». The ownership of sovereign power was succesively attributed by the political thought to: a) The King (absolute Monarchy), which implies an absolutist conception of law. b) The People and the Nation (liberal state): theories of Rousseau, Sièyes and Fichte. This is the liberal conception of law. c) The State (Hegel). The state, as a «real God», is the owner of the supreme and unique sovereign power, which is the source of all laws. 3. The imperative theory of norm, of legal-scientific foundation. Birth of legal positivism as a scientific theory of Law, deployed in different formulations, such as normativism, sociologism, etc. (Austin, Thon, Ihering, Somlò, Kelsen...). Last doctrinal formulations of imperativism: legal Scandinavian realism and other recent forms of the imperative theory.