Abstract

A truly realistic theory of law – the possibility of which is examined in this work – should have the following characteristics. It should be more general than current theories, that is, be applicable to both common law and civil law; in consequence, it should invert the relationship, commonly instituted by positivist theories, between legislation and adjudication. Both in historiography and in legal comparison, of which legal theory is an extension to a higher level of abstraction, adjudication is the central moment of the legal process, while legislation can be seen as one of the many attempts, and perhaps not even the most successful, to limit and control adjudication. An example of the explanatory capacity of a truly realistic theory is the so-called crisis of sources: legislation institutes judges, but they are, ultimately, those who set the hierarchy of sources and the hierarchical position of legislation itself.