CRITIQUE OF THE JUSPOSITIVIST THEORY OF JUDICIAL DECISION

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