The Opaque Side of the Law Taken Seriously. Remarks on an Essay by Damiano Canale

Abstract

This paper critically examines some of the theses expressed by Damiano Canale in the essay Cuando los expertos crean derecho: deferencia, opacidad y legitimidad. In particular, the analysis focuses on the opacity of legal provisions: it is argued that the definition provided by Canale is not perspicuous, raises epistemic problems and seems to be based on a naive view of legislative intention. By contrast, if we dismiss such a naive view, the opacity of legal provisions appears as a ubiquitous phenomenon that has peculiar qualitative features only when it turns into the opacity of legal norms. Then, the paper investigates the problems raised by the use of technical terms in legal texts and the solutions proposed to solve them.