Beyond positivism: Theoretical and legal approaches

Abstract

The research originated from the reading of a text written by Alí Lozada, President of Ecuador’s Constitutional Court, titled Independence is What Gives Legitimacy to Being a Judge, What Makes It Meaningful. In this work, Lozada conceived Law from the perspective of Legal Post-Positivism, defining it as an argumentative social practice that constructs and reconstructs normative systems. This praxis was characterized by raising questions, problems, and issues, as well as addressing them through theses supported by reasoned arguments, which was identified as the essence of legal practice. To understand Legal Post-Positivism, it was first necessary to analyze general Post-Positivism, understood as a refined evolution of Positivism that asserted the only valid non-analytical knowledge was scientific knowledge, based on the precise description of invariable theoretical models across time and space, derived from observable phenomena. Legal Post-Positivism, in turn, was conceptualized as a philosophical school that interpreted Law as an objective and neutral entity, devoid of moral, ethical, political, or ideological content—a trait linking it to the scientism and empiricism of traditional Positivism. The study aimed to characterize both currents—Post-Positivism and Legal Post-Positivism—and determine the relationship between them. To achieve this, a qualitative paradigm was employed, complemented by interpretative and hermeneutic methods, while the primary technique involved systematic bibliographic review. The results highlighted the inherent connection between General Philosophy and Legal Philosophy within the framework of these schools.