¿Quiénes son los verdaderos formalistas en la teoría de la decisión judicial?

Abstract

Starting from the distinction, between formalistic theories of legal validity and formalistic theories of the judicial decision, it is pointed out that in the twentieth century, formalistic theories of judicial validity, such as that of Kelsen, have been,
like all the iuspositivism of that time, anti-formal theories of the judicial decision, while the formalism of the decision of the judges was inherited by the iusmoralist doctrines, which affirm the only correct answer for each case, and deny, or make exceptional, judicial discretion. The current principlist and pondering neoconstitutionalism is one of those formalistic doctrines of the judicial decision. Today in its canonical form, it is marked by the synthesis made by Alexy, between the German jurisprudence of concepts and Dworkin, to which Alexy adds a finished method of weighing. In this way, this mainstream and weighting constitutionalism is a kind of inverted reflection of that nineteenth-century metaphysics of jurisprudence of concepts. In this way, German metaphysics continues to permeate the theory of continental Law and, specially, in Latin America.