Los Resabios del Positivismo en el Siglo XXI

Abstract

Abstract

Legal positivism has stood as one of the most robust doctrines over the past few centuries; however, since the mid-twentieth century, the world has witnessed multiple phenomena whose theoretical treatment requires analysis from the perspective of legal philosophy. The rise of constitutionalism is one of the factors that has triggered a crisis in positivism, given that the Constitution is an instrument directed at society that enshrines the popular will. Positivism holds that every source of law must be found within the legal system, whereas constitutionalism recognizes all norms contained in the Constitution, whether expressly or implicitly, as is the case with human rights. As a philosophy of law, legal positivism establishes a clear distinction between the "Is" and the "Ought" of law, focusing solely on "what is." Conversely, rights are moral demands that positive law must satisfy; that is, they pertain to the "Ought" of law—a realm that is alien to legal positivism, yet intrinsic to constitutionalism. In an increasingly globalized and rapidly changing world, positivism faces mounting criticism for its inability to resolve the social issues currently afflicting society. Therefore, this article seeks to reflect on whether positivism and constitutionalism can coexist within the same context, or whether, conversely, the former must yield to the latter in order to achieve fairer legal systems that contribute to the fulfillment of the State's ends.