La indeterminación jurídica de la respuesta a los casos difíciles

Abstract

To account for the phenomenon known as “neoconstitutionalism”, it seems appropriate a new legal theory, that overcomes the positivist paradigm, in the version of Hart, and that replaces it by the postpositivist conception of R. Dworkin. In Hart's theory the idea of discrecionality plays a fundamental role, to explain the way courts of justice solve difficult cases. Dworkin defends that the impossibility of reaching consensus does not prevent admitting that difficult cases always have an only right answer, determined by the legal system. I'll try to justify that the thesis of discrecionality of Hart can not be replaced by the thesis of the only right answer of Dworkin, and I will defend that, properly purified, the thesis of discrecionality must be maintained in the new legal theory.

Keywords: difficult cases, discrecionality, indeterminacy, legal reasoning, neoconstitutionalism, positivism.