La Torre Massimo, Ontology and Law: A Neo-Institutionalist Perspective

Legal theory has mainly been driven by two approaches, one that I would call „prescriptivism”, the other I would label „descriptivism”, with really very little or nothing in between. For prescriptivism law is a command, an imperative, a „regulative rule”, more often than not backed by a sanction (usually an evil, a sufferance, a harm). For the alternative approach law is a fact that one can approach with a naturalistic epistemology. It's a fact that one can „describe”. And such description sometimes is also thought of as possessing the magic force of, so to speak, directing human conduct. Legal realism, according to which rules or law are a bunch of predictions, is in this sense paradigmatic. But the two approaches are also mixed up or conjoined in the most popular of the legal philosophies, legal positivism. It believes that law indeed is imperative, but being a fact (a „source”) it can also be described, so that its understanding can be neutral and without any prescriptive relevance....