Legal positivism and systemic theory of law

The convergence and divergence of justice and law

Abstract

This article examines the relationship between justice and law from legal positivism and systemic law theory. Inherent in these theoretical structures are varied notions of justice, revealing divergent understandings of legality and morality. Although legal positivism maintains a defined and objective approach to the formulation of law, it runs the risk of inflexibility, potentially making it difficult for law’s adaptation to societal changes. In contrast, systemic theory accommodates the dynamic development of the legal system by adopting internal functional differentiation to respond robustly to the complexities of society. Through functional differentiation, justice operates in the legal system in a self-referential way, as a contingency formula, constantly modifying its understanding in search of consistent expectations. This perspective allows the system to review its own decisions, a practice aligned with the openness of modern societies to new things and alternatives. The comparative analysis that follows between these two theories provides new insights into their respective approaches, shedding light on the broader implications for the structuring of the legal system, and culminates in a comprehensive understanding of how legal positivism and systemic law theory converge and diverge in their interpretation of justice and law.