Abstract

GABRIš, Tomáš. Post-realismo jurídico y teoría prescriptiva del derecho: ¿puede el realismo jurídico proporcionar orientación normativa?. Iuris Dictio [online]. 2020, n.25, pp.113-124. ISSN 2528-7834.  https://doi.org/10.18272/iu.v25i25.1604.

One of the objections against both historical and current legal realism is that it is a merely descriptive approach and that it focuses only on attorneys and parties to a dispute. It is claimed that it provides no guidance for judges or other decision-making authorities on how to proceed in solving legal disputes and in applying law onto the facts. Legal realism can either give up on these ambitions completely and leave them for traditional legal theory, or it can instead move to a new, post-realist phase, and try to develop a theory of law which will be able to prescribe to real actors how to behave in a real-life situation. Economy denotes such a theory by the notion of “prescriptive” theory. This undertaking would, nevertheless, require to focus on modern theories of decision-making, behavioral economics and cognitive science, combined with (neo)institutionalist and discursive theories.

Keywords : Legal Realism; Post-Positivism; Post-Realism; Prescriptive; Theory of Law..

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