Scientific neoconstitutionalism

Abstract

Context: Legal theory has been predominantly guided by legal positivism since the 19th century. However, since the mid-20th century, the emergence of the constitutional view of Law has questioned its paradigms. Problem: There are still doubts as to whether this new view effectively structures a new theory for Law, starting with the scientific bias. Objectives: The research developed aimed to clarify exactly this, which were the new paradigms proposed by this new vision and whether they are sufficient to see a new scientific bias for the theory of Law. Method: A narrative review of bibliographic material was carried out, so that positivist thought (translated in a special way by Bobbio) could be contrasted with current constitutionalist thought. Results: Positivism advocated a neutral science of being; constitutionalism, a science of ought-to-be; and neoconstitutionalism, a committed science of becoming. Final considerations: there is a new and mature scientific bias that suggests it is possible to defend a new theory of Law, a neoconstitutional theory.