How Irrelevant are the Defining Theses of Legal Positivism?

Luna F.M. · Doxa. Cuadernos de Filosofia del Derecho (2023) · DOI: 10.14198/doxa2023.46.18

Resumen

The paradigm of law as argumentation requires leaving behind legal positivism and assuming a new theory that serves the jurist to justify correct answers in hard cases that involve principles and value demands. The central theses of legal positivism are seen as irrelevant and obvious and are criticized as preventing the development of a theory of law adequate to the conditions of the constitutional state. This paper proposes a way of understanding the central theses of legal positivism, regarding the institutional dimension of Law, which justifies the relevance of this legal conception within the framework of the constitutional states.

Instituciones: Pontificia Universidad Católica del Perú