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Published online by Cambridge University Press: 25 January 2025
1. LEGAL REALISM IN THE AGE OF PHILOSOPHICAL DECONSTRUCTIVISM
Philosophical and political deconstructivism is largely inspirational for today's critical legal theories, which are showing a renewed vigour in Italy. Here, a new wave of legal realists affi rms that opposing ‘practices of oppression’ means imagining strategies that focus not on the individual, seen as separated from the social structure, but on a collective ‘we’, constituted by a complex mixture of various types of norms: legal, political, social. In this postmodern frame, new critical legal theories reformulate the most classical realistic commitment against legal positivism and formalism.
It is undeniable that, when transposed on the juridical level, philosophical deconstructivism brings along anti-formalist implications. Nevertheless, does it also imply substantive changes at the level of the idea of ‘norm’ and of ‘law’ that is used, compared to those ideas used in a traditional, legal-positivist context?
Not much: this is the position which I will advocate in this chapter. Exploring the concept of norm that philosophical deconstructivism adopts could lead one to discover that this latter presupposes an idea of norm not that far from that which is centred on the heteronomy of command, and which used to be typical of legal positivism. This latter, in the European continental experience of the twentieth century at least, owes a great deal of its long-lasting success to having been able to combine the heteronomy of the command with the democratic and constitutional foundation of the juridical order: in this frame, the legal norm has been regarded as the product of progressive political addresses, and the tool of their affi rmation.
This may explain why, in today's anti-formalistic views – interested in the reform of society – the norm remains what it has always been in modern times: a useful (and somewhat authoritarian) tool for the promotion of progress.
In this chapter, I will compare some aspects of Judith Butler's thought, prominent in contemporary philosophical deconstructivism, with certain aspects of a contrasting view, the Italian feminist thought of sexual difference. It is precisely in the dominant paradigm of Butler's thought, the gender norm, that I believe we can fi nd the signs of a resurgence of imperativistic conceptions of law, diluted in some sort of deconstructed pan-normativism which in the whole recalls the features of legal positivism much more than one would expect.
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