Positivismo giuridico e neocostituzionalismo di fronte alle questioni bioetiche

Legal positivism, new constitutionalism and bioethical issues This article analyzes the two prevailing orientations associated with the interpretation of the juridical norms in the doctrine and jurisprudence of the 20th century, whose influence spreads up to our days. The theoretical framework of legal positivism is described with specific focus on the “pure theory of law” elaborated by Hans Kelsen. This school is contrasted with new constitutionalism, a doctrine that is analyzed starting from the work of Ronald Dworkin up to that of its main Italian epigones, especially professor Gustavo Zagrebelsky, theorist of “meek law”. A right based on rules (envisioned by the legislator) is accompanied by a right based on principles (envisioned by the judges on the basis of the “concrete cases” they are called to resolve). Two concrete cases within the Italian jurisprudence are then analyzed: the Welby case and the Cappato case.