Dejemos atrás el positivismo jurídico

Abstract

The purpose of this article is to argue that legal positivism, in its distinct variants –exclusive, inclusive, and axiological–, is unable to account for, and to operate within the new reality of the Constitutional State, despite the important contributions it has made in the past to the renovation of legal philosophy and legal dogmatics. This is due to the fact that legal positivism concedes law theory a merely descriptive quality, which implies the exclusion of the evaluative dimension of laws, in addition to its inability to account for other relevant aspects of legal reasoning. Moreover, an excessive emphasis on the prescriptive quality of legal norms overlooks their evaluative dimension and obstructs any consideration of a constitutional legal system. The reasons advanced here indicate that legal positivism cannot participate in many important current debates. According to the argument proposed, we can conclude that legal positivism has already exhausted its historical cycle by not recognizing law as a complex social practice.