CRITIQUE OF THE JUSPOSITIVIST THEORY OF JUDICIAL DECISION

29 Novos Estudos Juridicos 1 (2024) 

24 Pages Posted: 24 Jul 2024

See all articles by James R. May

James R. May

Washburn University - Washburn University School of Law; Widener University Delaware Law School; Haub School of Law at Pace University

Marcelo Buzaglo Dantas

University of Itajai Valley UNIVALI

Orlando Luiz Zanon

University of Itajai Valley UNIVALI

Date Written: June 04, 2024

Abstract

This article advocates for judges to deploy scientific approaches to law. “Legal positivism” (or, “juspositivist”) holds that law is a set of rules created by human beings advancing the rule of law. This contrasts with “natural law,” which holds that law is based on inherent moral principles such as human dignity. Based on an inductive study, Cartesian data processing and deductive logical analysis, the authors conclude that judges should explore descriptive and normative aspects and recent interdisciplinary discoveries in the fields of economics and psychology to construct a theoretical paradigm that is positivist while avoiding regressions to natural law to allow greater normative potential for the protection of fundamental rights.

Keywords: Judicial decision-making theory, Legal positivism, Fundamental rights

Suggested Citation

May, James and Dantas, Marcelo Buzaglo and Zanon, Orlando Luiz, CRITIQUE OF THE JUSPOSITIVIST THEORY OF JUDICIAL DECISION (June 04, 2024). 29 Novos Estudos Juridicos 1 (2024) , Available at SSRN: https://ssrn.com/abstract=4896306 or http://dx.doi.org/10.2139/ssrn.4896306

James May (Contact Author)

Washburn University - Washburn University School of Law ( email )

1700 SW College Ave.
Topeka, KS 66621
United States

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

Haub School of Law at Pace University ( email )

78 N. Broadway
White Plains, NY 10603
United States

Marcelo Buzaglo Dantas

University of Itajai Valley UNIVALI ( email )

Campus IV - Biguacu
Santa Catarina 88160000
United States

Orlando Luiz Zanon

University of Itajai Valley UNIVALI

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