Abstract

MARQUISIO, Ricardo. Positivist arguments in the Post-positivist Age. Rev. Derecho [online]. 2019, n.19, pp.49-75. ISSN 1510-3714.  https://doi.org/10.22235/rd.v0i19.1733.

I call Post-positivist Age the status of legal theory after the "Hart-Dworkin debate" in which positivism has lost the ambition that characterized it throughout history and that made it distinctive in its confrontation with Natural Law Theory: to give account of a specifically legal normativity, compatible with the skepticism or the avoidant position about the existence of an objective morality. In the Post-positivist Age, associated with a growing constitutionalization process that encompasses the philosophy of law itself, there are multiple proposals aimed at giving account of legal regulations and compatible with the social thesis, which currently is the common minimum in which the contemporary positivisms converge. The purpose of this paper is: (I) to identify some requirements that, within the framework of the challenges of constitutionalism, the positivist arguments should fulfill; (II) present some positivist emphases, based on the moral relevance of the distinction "to be / should be" of the law: anti-formalism, self-restriction of interpreters and intentionality of interpretation, contingency of the social world.

Keywords : legal positivism; postpositivism; law natural theory; legal normativity.

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