The abolition of law and the triumph of legislation

Abstract

This paper aims to analyze the process of displacement and eventual abrogation of Law in favour of new artificial legal formulas characteristic of statist formal law, which we call legislation. Legislation unfolds as a mechanism of imputation or as a formal attribution with a condition of possibility, detached from the ordering concept of Law originally oriented toward the attainment of the common good. Rather, legislation is structured as a logical and self-referential mechanism presenting a twofold problem: first, it subjects the idea of legitimacy to the legal order, generating artificial and mutable legal ontologies; second, the only exit from the system is another configuration programmed by itself: Law as a performative representation that discretionarily assigns fabricated realities, operating as false legal ontologies that are entirely changeable. Moreover, by logical extension, this condition of possibility must necessarily rest upon the evanescence of the will, identified with freedom. The act is postponed, and in its place the potential triumphs. Within this structure, the will like morality plays a dual role: as the origin of every order or prescription, and as the final receptacle of the mandate, thus shaping a dynamic of power that is invariably personalist. This paper argues the hypothesis that juridical Modernity, in its most entrenched form, has lost the compass of Law, vindicating the urgency of revitalizing Law from its ontological dimension, restoring it to its being and returning its substance. If statist legality scrutinizes existence by presuming itself moral through self-resolution and selflegitimation, Law must stand as the last bastion of freedom, with all its force and dynamism, seeking its legitimacy beyond the ever-changing social and political transformations.