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e-Pública: Revista Eletrónica de Direito Público

On-line version ISSN 2183-184X


LOPES, Pedro Moniz. Are we positive about positive law in a global sphere?: A comment on Edouard Fromageau's “the Concept of Positive Law in Global Administrative Law”. e-Pública [online]. 2015, vol.2, n.3, pp.133-143. ISSN 2183-184X.

The text which is now being commented was presented by Edouard Fromageau in the international workshop “ Global Administrative Law and the concept of law” held at the University of Lisbon, School of Law on 28 November, 2014. It was initially commented by Guilherme Vasconcelos Vilaça (University of Xi'an Jiaotong). I had the opportunity to very briefly intervene in the Q & A session. In this paper, Fromageau adopts an inferential method aiming at extracting a common concept of positive law in connection with GAL in altogether different, albeit collaborative, schools of thought: the Manhattan school and the Italian school, personified by Benedict Kingsbury and Sabino Cassese. Along the way, Fromageau makes serious claims over some confusions surrounding the concept of positive law by GAL scholars. Nevertheless he adopts a relativistic view, under which legal cultures are presented as a possible key to explain different concepts of positive law. His conclusion is that there is no conceptual unity between the concept of positive law between the Manhattan school and the Italian school. I fully agree with the conclusion. Nevertheless, I understand that some possible incoherences and shortcomings could have been highlighted by Fromageau along the way. I intend to place some of his main findings against the background of methodological positivism, mainly within the dichotomy of describing and creating (or intending to create) law.

Keywords : Global Administrative law; positive law; legal positivism; sources of law.

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