Dietro al velo del diritto positivo

In his recent essay - Il diritto contro se stesso. Saggio sul positivismo giuridico e la sua crisi - Massimo La Torre advances a clear thesis: if law is not to be understood simply as regulated violence, we must reject legal positivism. However, this anti-positivism could amount to throw the baby out with the bath water. Indeed, law in modern times arises through the dialectic between morality and power, between what is decided and who decides, between "legitimacy" and "positivity" in Habermasian terms. This by no means implies that the right balance in this dialectic is to be found only in legal positivism, especially when it claims to assimilate “legitimacy” to “positivity”. But even an antipositivism too prone to morality, to what is decided, in short to "legitimacy" alone, would end up falling into an error exactly equal and opposite to that of positivism.